9th Circuit Holds That Executive Order Stay Remains In Effect

Today, the 9th Circuit Court of Appeals held that the motion for a stay of the Temporary Restraining Order enjoining the government from suspending the entry of permanent residents, refugees and visa holders from 7 majority Muslim countries was denied. In its 29 page opinion, which was issued Per Curiam, the court explained its rationale in great detail. 

PER CURIAM OPINIONS

Contrary to what many may think, a per curiam opinion is NOT a unanimous decision. The phrase per curiam is Latin meaning "for the court." In practice, what this means, is that the judges who decided it have elected not to sign their names to the opinion. It can mean that the judges decided the outcome unanimously, but for different reasons, or that the judges felt a united front was more desirable. Sometimes the judges all agree, and sometimes it's just a majority of the judges. In any event, the actual vote count for the judges for and against will remain unknown. The most famous example of a per curiam decision is the case of Bush v. Gore, decided by the Supreme Court after the 2000 presidential election. In that case, the court decided the central issue per curiam, however, there were numerous dissenting opinions from the Justices. 

STANDING

The first issue decided by the court was that of 'standing.' Standing has to do with the party bringing the lawsuit. Our law requires that only the person who was injured and who has suffered a tangible harm can bring a lawsuit. The states of Washington and Minnesota brought this case on behalf of its citizens, its permanent residents (not U.S. citizens), as well as those who were denied entry into the United States. The government argued that the state may not bring a lawsuit challenging a presidential executive order on behalf of others, especially those who have no ties to the U.S. or those who have never been to the U.S. The court reasoned that the states did have standing because they were able to show that they would suffer harm as a result of state universities not being able to attract students, current students who could not travel, and a loss of tax revenue. The court also reasoned that the doctrine of 'third-party standing' was applicable because our law has a history of allowing third-parties to bring suits on behalf of those who cannot do so themselves. A state may do so under the theory of Parens Patriae (parent of the nation), which means the state may stand in place of the actual party being injured and litigate a lawsuit on their behalf. 

DUE PROCESS

With standing being decided, the court went on to hold that the government did not establish that President Trump's executive order, Protecting the Nation From Foreign Terrorist Entry Into the United States, (Executive Order 13769), upheld the due process rights of those denied entry into the United States, permanent residents detained at ports of entry, and anyone affected by the government's execution of this order. The Fifth Amendment to the United States Constitution provides that '[No person shall] be deprived of life, liberty, or property, without due process of law.' This applies to all person subject to the laws and jurisdiction of the United States, regardless of citizenship or immigration status. The Supreme Court has held that due process rights apply to "all persons within the United States, including aliens regardless of whether their presence in the United States was lawful, unlawful, temporary or permanent."

More specifically, the doctrine of 'procedural' due process requires that notice and the opportunity to be heard must be provided to the person affected prior to the government restricting their ability to travel or enter the United States. While the court did not reach the merits of this argument, they found that the government did not establish a likelihood of success in disproving the states' argument that the executive order violated these rights.

ESTABLISHMENT CLAUSE AND OTHER CLAIMS

The states based a large part of their arguments on the fact that they believe the president's executive order violates the Establishment Clause of the First Amendment to the United States Constitution, which provides that 'Congress shall make no law respecting an establishment of religion.' The law states that a statute or law that has a religious purpose violates the constitution. This purpose or intent can be garnered through statements or history found outside of the actual text of the law. In this case, the states argued that President Trump and his surrogates have made numerous statements about a 'Muslim ban' and a desire to target this executive order towards Muslims specifically. However, due to the immense constitutional implications found in this case, the court declined to decide on these issues and instead reserved consideration of them until a more complete record can be ascertained in the district court. 

The government also raised the spectre of irreparable harm to the government if the executive order was not reinstated fully. They argued that the threat of terrorism is such that if the executive order is not reinstated, the nation would suffer national security injuries that cannot be recovered from. However, the court held that while national security and the threat of terrorism is a concern of 'the highest order,' the government has not provided any evidence that the country is facing a national security threat that requires the implementation of this executive order other than repeating that the president has this authority. 

It remains to be seen how this case will ultimately play out, however, the nation is getting a crash course in civics, our system of federalism, and the separation of powers. Legal issues like standing, temporary restraining orders, and preliminary injunctions are also showing that they, too, deserve national attention and recognition. Often, as lawyers, we overlook such issues as merely procedural or routine. But as we are seeing on a national stage, these sometimes hyper-technical issues have the potential of affecting people on a global scale and bringing a divided country to the brink of a constitutional crisis.