ANALYSIS OF WASHINGTON v. TRUMP

(Posted February 10, 2017) I don’t usually step out of the Commonwealth to analyze appellate opinions; I generally stick with the state appellate courts and the Fourth Circuit, with an occasional foray across the Potomac to One First Street. This will be my first analysis of a federal circuit court located elsewhere. Given the amount of interest in, and attention devoted to, the Ninth Circuit’s ruling last night in the matter of the President’s immigration order, I figure I owe my readers at least a few words on the subject.

State of Washington v. Trump is, as you know, a rare appellate animal, an appeal of a temporary restraining order. Generally those orders aren’t reviewable, in part because of their short duration; if an appeal takes the usual time to wend its way through even one level of appellate review, the TRO will likely have expired before oral argument.

This case is special, for reasons I don’t have to describe. The States of Washington and Minnesota urged that the appellate court didn’t have jurisdiction until and unless the district court entered a preliminary injunction. But the Ninth Circuit panel rules that “in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction.” Many if not most TROs are ex parte, with no participation by the respondent; but here the federal government participated actively in the district-court hearing. In short, it’s a crucial public issue and everyone’s here and on board.

Thus endeth the President’s string of victories in the appeal. Literally every other decision made by the panel goes in favor of the States.

The first issue is standing: how can a state sue to vindicate the rights of individual persons, and noncitizens at that? While the States urged parens patriae standing (where the state acts as a sort of guardian of the people within its borders), the Ninth takes a simpler route: third-party standing. That allows Litigant A to sue on behalf of Litigant B whenever B’s interests are “inextricably bound up with the activity the litigant wishes to pursue.”

Sound contrived? Well, maybe it is, but it’s also firmly established in SCOTUS jurisprudence. The court gives several examples, citing case names that will be familiar to anyone who plows the field of constitutional law: Griswold v. Connecticut held that a doctor can sue to vindicate a patient’s rights; organizations can sue for the benefit of its members, as happened in NAACP v. Alabama; and schools can sue for their students, as the court held in several decisions, the most memorable of which is Runyon v. McCrary. The Supreme Court has actually held in the educational context that, in the panel’s words, “students’ educational success is ‘inextricably bound up’ in the universities’ capacity to teach them.”

Those folks in the State of Washington Solicitor General’s Office are no schnooks; they seized on this holding in their factual allegations to establish standing. Behold:

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.

From what I see, this probably isn’t a final holding in the case; remember, we’re just here on review of a TRO, and much of the case has yet to unfold. For now, the Ninth panel is satisfied that it has the ability to decide the case.

Actually, that’s the next issue: the President asserted on brief that his immigration order – call it a ban if you want to; I’ll stay out of that fight for now – was wholly unreviewable, based on the Constitution’s unlimited grant to him of control over immigration issues. This argument brought immediately to mind a similar argument made (and resolved) in US v. Nixon in the 1970s. There, a special prosecutor subpoenaed certain documents from the President. Nixon asserted in response (1) that the materials were protected by executive privilege, and (2) that the President was the entity who was entitled by law to make the judgment call (privilege or not). The Supreme Court issued a landmark opinion that said, in essence, (3) “Oh, no, you’re not.”

The outcome is the same here. The Ninth soundly rejects the claim that the Executive Branch has unfettered discretion over matters relating to immigration and our borders, citing recent precedents including Boumediene v. Bush and INS v. Chadha. There are still important limitations on the courts’ ability to review certain decisions; for example, if Congress ever got around to declaring war on someone or something, I cannot envision a court challenge to that. But the courts are the right place to evaluate whether an executive action fits within the contours of the Constitution.

And that brings us to the nature of the claims asserted. In order to justify a TRO, the movant – here, the States – have to show a probability of success on the merits, irreparable harm in relief isn’t granted, the absence of harm to others if relief is granted, and where the public interest lies. In order to uncork the existing TRO, the President has to make the reciprocal showing in his favor. The Ninth concludes that the States are likely to succeed on the merits of their Due Process claim, and that their Establishment Clause claim raises allegations of a serious nature.

As for Due Process, it’s a fairly easy route. The executive order cut off travel to all persons within the affected group without affording those persons notice or a hearing, two of the fundamental requirements of procedural due process. The court of appeals agrees with the district court, and rules that the President hasn’t shown that he’s likely to prevail on the merits of that claim. The court also notes that the Due Process Clause applies to all persons, not just citizens – even to those who are here illegally. (Think about it. Can a prosecutor refuse, for example, to disclose Brady materials to a defendant just because that defendant is an illegal alien? That’s not a close call.)

The court also finds that the States “raise serious allegations and present significant constitutional questions” in their Establishment Clause claims. Citing “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban,’” the court concludes that the President hasn’t shown that he’s likely to prevail on the merits of that claim, either.

On the balance of hardships, the court observes that while the United States has a compelling interest in combating terrorism, the President “has done little more than reiterate that fact.” In contrast to the specific harms asserted by the states, the President’s arguments don’t address the fact that the TRO “merely returned the nation temporarily to the position it has occupied for many years.” Instead, he falls back on the contention that his decision isn’t reviewable. Of course, once matters unfold after a trial, or at least a hearing on a preliminary injunction, the federal government may well prevail; but this TRO will remain in place until then.

Matters should proceed apace in the district court, assuming the President doesn’t appeal to SCOTUS. The district court set a schedule for the temporary injunction calling for briefing to conclude by next week. I don’t know if this sojourn to the Ninth has effectively stayed those briefs.

The final question that’s probably on your mind is this: What happens from here? That’s up to the President and his legal advisers. As I see it, his choices are (1) appeal immediately to SCOTUS, (2) seek en banc rehearing from the Ninth, (3) accept this temporary defeat, go back to the district court, and try to win the temporary injunction hearing, or (4) craft a new executive order that doesn’t contain the allegedly fatal features of this one.

No, I cannot read the President’s mind. In the current environment, I would probably advise him to pursue a combination of (3) and (4). The chances of getting five justices to agree to overturn a TRO are quite small; the Supreme Court far prefers to address final judgments, and the pace at which the temporary injunction hearing will proceed probably makes SCOTUS review a waste of time. Nor would appealing to the en banc Ninth help. Remember, this is the Ninth. I think there are 25 active judges, and that means you’d need to get 13 of them to vote for review. (Out there, if the court does grant en banc rehearing, the case is heard by 11 judges, not all 25.)

Of course, this is President Trump, and given what you can glean from his Twitter feed, he may already have directed the Acting Solicitor General to file a petition for emergency review at One First Street. The probability that we haven’t seen the last appellate proceeding in this case is, oh, roughly 100%.