State of Washington & State of Minnesota v Trump No. 2:17-cv-00141 (W.D.Wash. 2017) (9 February 2017)
In a unanimous 3-0 decision, the United States Court of Appeal maintained the freeze on US President Donald Trump’s controversial immigration order.
On January 27 2017, an Executive Order (EO) was issued by US President Donald Trump which:
- suspended the entry into the United States of people from seven countries for 90 days;
- suspended the entire United States Refugee Admissions Program for 120 days; and
- suspended the entry of Syrian refugees indefinitely.
On January 30 2017, the State of Washington (later joined by the State of Minnesota) filed a challenge in the United State District Court alleging that various sections of the EO were unlawful and that the purpose of the EO was to institute a “Muslim ban” in line with a Presidential campaign policy. Various government bodies were listed as defendants (hereafter collectively referred to as ‘the Government’).
The district court granted a temporary restraining order (TRO), concluding that the EO was “likely…to prove unlawful”, and that while the EO remained in force “significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States”.
Pending an appeal of the district court’s decision, the Government filed for an emergency stay of the TRO in the United States Court of Appeals for the Ninth Circuit.
In response to an argument made by the States that the Court lacked jurisdiction over the Government’s stay motion, the Court held it had jurisdiction to hear the appeal because the District Court’s order, though styled as a non-appealable TRO, had the qualities of a preliminary injunction and was therefore appealable.
The States’ Standing in the District Court
The Government argued that the district court lacked the power to make the TRO because the States lacked standing to challenge the EO in the first place. The Court considered this issue de novo, and concluded the States did have standing. The Court found that a concrete, personalised and actual injury had been suffered by the States through their public universities. Particular injuries included students and faculties being unable to travel for research and academic collaboration, and universities being unable to consider attractive student and faculty candidates from the affected countries.
Reviewability of the Executive Order – the Constitutional role of the Judiciary
The Government next contended that the President has “unreviewable authority to suspend the admission of any class of aliens”, and that therefore the district court lacked authority to institute a TRO over the EO.
This argument was rejected on the basis that it would displace the constitutionally prescribed role of the courts, and run “counter to the fundamental structure of [the United States’] constitutional democracy”. The Court emphatically put that it is “beyond question” that the judiciary has “authority to adjudicate constitutional challenges to executive action”.
The Court held that, though the judiciary may afford a degree of deference to the political branches on matters of immigration and national security, courts must always be able to ensure that the protections enshrined in the Constitution are upheld. The courts must be prepared to review and, if required, invalidate actions taken by the executive, even if these actions are taken in the pursuit of national security in times of conflict.
Consideration of the EO
In denying the Government’s application for a stay of the TRO, the Court considered that;
1. The Government was not likely to succeed in its appeal to stay the TRO because the EO was likely to prove illegal;
2. The Government would not be “irreparably injured” if a stay was not granted;
3. A stay would “substantially injure” other interested parties; and
4. Competing public interest considerations, on the whole, did not fall in favour of a stay.
The first two considerations were the most influential. In determining that the Government was not likely to succeed in the original motion, the Court determined that the EO breached the Fifth Amendment rights of the individuals affected by the EO by denying them procedural due process rights. The Court could not rely on subsequent “authoritative guidance” issued by White House counsel that the EO did not apply to lawful permanent residents, because (i) there was no precedent to suggest that White House counsel could supersede an EO in this way, and (ii) the Court could not be certain the Government’s interpretation of the EO would not shift again. The Government’s arguments also failed to consider the position of non-lawful residents, at least some of whom would have due process rights violated by the EO.
The Court declined to consider whether or not the EO was also likely to breach the First Amendment for having a “non-secular purpose”, because it had already found the Government was not likely to succeed on the due process ground.
Trump’s travel ban had widespread and immediate effects, both in the United States and worldwide. The Court’s decision – in such a politically charged context – represents a strong assertion of the judiciary’s role as a check on Government (and Presidential) power.
Since the decision, Trump has signed a new Executive Order which superseded the previous ban halted by the courts. The new EO again suspends visa processing for people from six countries (with Iraq being removed from the list of affected countries) and again suspends the US refugee intake for 120 days. A fresh legal challenge has been filed.
The order comes into effect on 16 March. It remains to be seen what impact the order will have on the deal to take refugees from the Australian-run facilities on Nauru and Manus Islands.
The full decision can be found here.
Mara Papavassiliou is a legal intern at the Human Rights Law Centre.