Trump loses appeal, but travel ban fight isn’t over yet

Outside the Ninth Circuit Court of Appeals in San Francisco. AP/Haven Daley

Thursday’s appellate court opinion, which denied President Donald Trump’s appeal concerning his immigrant ban executive order, was unsurprising. It cautiously declined to upset the status quo, temporarily continuing the prevention of the executive order’s enforcement nationwide. But it also allowed for further briefing and argument.

As a constitutional law professor and former Justice Department litigator, I see the court’s reasoning as suggesting deep skepticism of Trump’s position and, at the same time, spotlighting the main issues for the further appeals that will inevitably follow.

The order, then the ban

Among other things, the executive order bans for 90 days the entry of any nationals from seven majority Muslim countries. It imposes a 120-day ban on admitting refugees, and an indefinite ban on Syrian refugees. Further, priority is to be given to members of minority religions in their home state once the ban on admitting refugees runs out. This would have the effect of favoring Christians.

After a Seattle federal judge ordered a nationwide halt to enforcing the executive order on Feb. 3, the Trump Justice Department petitioned the three-judge appeals court to lift the injunction. The case went up on appeal on an emergency, preliminary basis.

Violating due process

In its Feb. 9 opinion, the panel of the Ninth Circuit Court of Appeals found it likely that the states of Washington and Minnesota had legal standing to sue, and that the executive order violated the due process rights of at least some of those it affected. It reserved the question of whether the executive order violated the separation of church and state, but noted these are “serious allegations” that raise “significant constitutional questions.”

However, because it was an emergency appeal by the government to immediately undo a temporary lower court order, the government had a heavy legal burden. The court’s preliminary decision that the government failed to meet that heavy burden doesn’t necessarily mean the court couldn’t change its mind later. Nonetheless, the tenor of the opinion sounded skeptical of the Trump position.

Almost half the opinion dealt with the government’s procedural objections about whether the case even belongs in court. Citing Supreme Court cases, the appeals court ruled that the state universities represented by the state government lawyers could indeed sue on behalf of foreign-born students, faculty and staff who could not study, teach or work because of the travel ban. And, while the appellate judges acknowledged that courts should show deference to the president on national security and immigration issues, they sharply rejected the Trump administration’s gutsy and novel argument that the courts had no power to review the executive order, citing several recent Supreme Court cases.

On the merits, the panel came down most strongly on due process issues. The Constitution’s due process clause says that before the government can restrict someone’s freedom of action, it must give affected persons advance notice and a hearing.

Even noncitizen aliens have due process rights, if they are in the U.S.. The appeals court stated that the executive order most clearly violates due process because it affects holders of lawful visas and “green cards” who are present in the U.S., or who have been in the U.S. and are only temporarily abroad.

Lawyers for the government attempted to argue that the executive order didn’t really apply to green card holders, or even, ultimately, visa holders. They argued there was no need for a court order against enforcement. But the judicial panel was having none of it. In a hint of skepticism toward the administration’s reliability, the court expressed doubt that anyone other than the president had the authority to change the effect of the executive order. It said it couldn’t be sure the government lawyers’ take on the executive order would “persist” for long, “in light of the government’s shifting interpretations of the Executive Order.”

More fundamentally, the appeals court ruled, even people who the government clearly views as falling under the executive order – like those present in the U.S. illegally – still have due process rights.

The panel was more cautious regarding the establishment clause claim, where the state governments argued the ban clearly targeted Muslims, thus violating separation of church and state. It did say it was proper to give weight to the “numerous statements by the president about his intent to implement a ‘Muslim ban,’” but it was not prepared to say much more at this early stage of the proceedings.

Crucially, the appeals court declined to narrow the nationwide scope of the Seattle judge’s injunction against enforcing the executive order.

In a “sauce for the goose is sauce for the gander” moment, the judges noted the recent case where a single federal judge had controversially blocked enforcement nationwide of an Obama executive order on immigration. The conservative appellate panel in that 2015 case had ruled that a court order covering only that court’s part of the country would lead to an unwise “fragmented” immigration scheme rather than a “uniform immigration law and policy.”

Left unsaid

The opinion is also notable for what it did not discuss.

At oral argument, the parties had raised the possibility of remanding the case back to the trial court for the taking of more evidence. There was no mention of this in the final opinion.

Oral argument also dealt with a federal statute barring discrimination based on national origin regarding visas. I recently argued this was the strongest argument against the executive order, but the opinion contains no discussion of it. This might be because that legal claim would not affect non-visa holders like refugees and persons with green cards.

Ultimately, this is a clear defeat for the Trump administration. But, given the necessarily preliminary nature of these emergency proceedings, it may not be a permanent one.

Trump can continue to argue before this three-judge panel, appeal their decision to the full 29-judge-strong Ninth Circuit Court of Appeals, and, ultimately and predictably, move on to the Supreme Court. Given its fast-track nature, the case will likely reach the Supreme Court before the current vacancy is filled. ​