The Trump administration lost hard Thursday night as a unanimous panel of judges on the U.S. Court of Appeals for the Ninth Circuit handed down an incredible rebuke of every single argument the U.S. Department of Justice (DOJ) advanced in support of Trump’s Refugee and Visa Order, also known as the Muslim ban.
Thursday’s decision leaves in place a lower court order blocking the ban nationwide while a lawsuit challenging it proceeds in federal court in Washington state.
The 29-page opinion methodically dresses down the DOJ. It begins by criticizing the administration for hastily enacting an executive order that is very likely unconstitutional. Then, it pivots to condemning the DOJ for jamming through an emergency request for an appeal while, at the same time, arguing that the federal courts do not have the ability to review Trump’s actions here.
It’s a scorcher of an opinion. And considering the fact that the last several weeks have felt like a series of gut-punches from the administration, it’s a fun read.
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But let’s break down what it means for the Muslim ban going forward:
This case is in its earliest stages, so this litigation isn’t going away anytime soon. The Ninth Circuit had granted a request by the Trump administration for an emergency review of a temporary order blocking its Muslim ban. That order was issued by a lower district court a week ago.
The procedural posture of this case is important for several reasons. First, the lower court’s order is temporary, not permanent. My colleague Imani Gandy does a great job getting into the details of why that is here. Broadly speaking, a lower court can’t issue a permanent injunction—in other words, a full block of the ban—without a fully developed record, including evidence and arguments. But there’s no such record yet here. In the meantime, the court looked at, in part, Trump’s own statements for evidence. Those statements include Trump calling for a Muslim ban while campaigning for president, as well as statements made to the press by Trump surrogate Rudy Giuliani bragging that the president had come to him asking how to craft a Muslim ban.
Finally. An institution with some power takes Trump at his word.
The limited evidence, and its appearance in this opinion, will matter for another, more ominous reason. The decision hangs Trump with his own words. It is 29 pages of accountability, the likes of which has not yet been demanded of the president. And he almost certainly won’t like it. We’ve already seen that this administration has no problem attacking the federal courts and the press when it disagrees with them. It’s a safe bet that after this opinion, and as the litigation and reporting around it continues, these attacks will only amplify.
In fact, it’s already happening.
As that happens, it will be important to watch how U.S. Supreme Court nominee Neil Gorsuch responds to the likely escalation. So far he’s on record saying Trump’s statements are “disheartening.” Will Trump’s inevitable lashing out at the federal courts in response to this latest loss raise the stakes in the Gorsuch confirmation fight? It should.
The Ninth Circuit also addressed whether the states had standing to bring the case in the first place. Standing means basically: Do you have an injury of some kind that the law can provide a remedy for? No standing, no case.
Here, the attorneys for Washington and Minnesota claim that the Muslim ban causes specific harm to their public universities. Specifically, they argue that their students and faculty can’t travel for professional or personal reasons, and that some have been stranded outside the country, unable to return to the universities at all.
Normally, an individual must bring a legal claim on their own behalf. Third-party standing, however, lets another party—in this case, the states’ public universities—bring claims on behalf of another—in this case, on behalf of their students and staff. This is the same legal doctrine that allows abortion providers to sue to block anti-abortion laws on behalf of their patients. Conservatives have been gunning to curb third-party standing for a while. So far, the Roberts Court has stayed out of the fight. But with the Ninth Circuit allowing the states to proceed on behalf of faculty and students, I’d expect a renewed push to gut third-party standing as well.
Given the preliminary posture of this case, the court’s most important analysis came in the portion of the opinion dealing with the Trump administration’s claims that the federal courts do not have the power to review the president’s Muslim ban. “The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” the opinion states, “The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” it continues.
A unanimous panel of federal court of appeals judges—one that included a conservative George W. Bush appointee—just told the Department of Justice that its argument that courts can’t review the president here is not just without any legal support, it is contrary to the foundational principles of our democracy.
In other words, a federal appeals court just called the official position of the Trump administration undemocratic. These are remarkable times.
Before Thursday’s opinion was issued, Trump had already promised to take any loss to the Roberts Court. The Ninth Circuit addressed that probability as well. It noted in its opinion that there is a plethora of case law that affirms the federal court’s power to review presidential actions like the Muslim ban, suggesting to the Roberts Court that now would not be the time to take Trump’s appeal.
“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,” the opinion states. “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.”
Normally in emergency appeals like the one here, the merits of the claims—as in, whether the ban is unconstitutional—don’t get addressed. That’s in large part because of the lack of a developed record I mentioned earlier. But here, because the Trump administration argued it would be irreparably harmed if the lower court’s ruling was not stayed, the Ninth Circuit had to dip its toes into the merits arguments.
These are not final rulings on the constitutionality of the Muslim ban, but they give us a good indication of where the analysis is headed in future opinions. And let me just say, the water feels just fine.
One of the claims made by Washington and Minnesota is that the Muslim ban violates the due process protections of the Fifth Amendment of the Constitution. The Fifth Amendment, among other things, guarantees due process anytime a government proceeding threatens a person’s “life, liberty, or property.” Due process rights mean, broadly speaking, that the government must follow certain procedures to protect against violating people’s rights. These kinds of procedures include things like having notice before a visa is suspended and the opportunity to appeal. Trump’s ban provided for neither.
The word “person” is also important here because the Trump administration tried to argue that due process rights don’t necessarily apply to everyone affected by the Muslim ban. This is a variation of an argument conservatives often make, which is that due process rights only apply to citizens.
It is an argument that is patently false, and the Ninth Circuit slapped it down immediately.
The other claim made by Washington and Minnesota is that the Muslim ban violates the Establishment Clause of the First Amendment, which guarantees religious freedom by preventing the government from picking and choosing which religions it likes and which it does not. Like the due process claims, the Ninth Circuit is, at best, skeptical that an executive order described by the president himself as a Muslim ban is constitutional.
All in all, this was exactly the kind of opinion civil rights advocates challenging the Muslim ban could have hoped for. It is a unanimous, forceful pushback against an administration that within its first two weeks has attacked the federal judiciary directly. Trump can’t fire federal judges, and Thursday’s opinion shows just why that separation of power is so critically important to our democracy.