The Jury Talks Back


Analysis of Today’s Ninth Circuit Decision on Trump’s Immigration Order

Filed under: Uncategorized — Patterico @ 6:39 pm

As you have no doubt heard, the Ninth Circuit today issued an opinion upholding the District Court’s TRO halting much of Trump’s order on immigration. This post analyzes the decision, which can be read here. Throughout, I’ll grade my own previous predictions about the ruling.

My overall impression is that this is a sound legal ruling — and that Donald Trump is personally to blame for it. By allowing Steve Bannon & Co. to write the order in a sloppy and overbroad manner, and further allowing them to decide that it applied to green card holders, Trump issued an the order that was bound to fail.

Perusing Twitter tonight, I see that many people who support the policy behind the order (as I do), but who have not followed the legal arguments closely, are saying this is just another leftist Ninth Circuit decision. But the order is a unanimous “per curiam” (through the court) ruling. It was joined by a judge appointed by George W. Bush who, at oral argument, expressed skepticism towards the idea that the order was motivated by religious bias, and seemed receptive to the argument that these countries might pose a threat.

The Twitter lawyers point out that this was not a ruling on the merits — and that’s right . . . but the merits still factored into the decision. A subtle point — brought up in the oral argument but missed by many observers — is that once the District Court entered the injunction, the burden shifted to the Government to show on appeal that it was likely to win in the trial court. The Court held that the Government had failed to make that showing. This portion of the ruling, then, does relate to the merits. The Court also held that the Government failed to show irreparable injury, since the TRO put the U.S. back in the same state of affairs that had existed for years.

According to the opinion, the executive order’s principal potential flaw was that it may have deprived a substantial number of people of due process, in three ways (the following paragraph describes the states’ arguments, which the Government failed to rebut for purposes of this appeal):

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The decision to interpret the order as applying to lawful permanent residents was reportedly made by Trump advisers Steve Bannon and Stephen Miller. This was clearly the most troubling aspect of the order to the judges — as well as the aspect of the order that stood out to most objective observers as the dumbest part of the order. As I said in my analysis of the oral argument: “I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs [lawful permanent residents].” What I didn’t predict outright was that Judge Clifton would find this enough to join an opinion upholding the entire TRO; I had expected that he would file a concurring opinion agreeing that the TRO was appropriate as applied to LPRs, but only as to LPRs.

The Government argued that the issue of the application of the executive order to LPRs was moot, because the White House counsel had interpreted the order as not covering LPRs. But the court was not convinced, noting that the White House counsel is not the President — and, since the Administration had given so many contradictory statements on this point, nobody can be certain that they won’t apply it to green card holders again:

[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings

Basically, the court said the order is clearly illegal in denying re-entry to LPRs and non-immigrant visa holders, and they aren’t going to rewrite the order (or let the White House counsel rewrite it) to conform to the law. That’s the President’s job. The court said that the Government’s different proposals for limiting the scope of the TRO still resulted in potential due process violations.

The lack of due process for LPRs was the central aspect of the opinion, and it was completely avoidable. The fault lies with Donald Trump.

As to the argument that Trump was targeting Muslims, the Court’s language seemed carefully crafted to maintain the unanimous nature of the opinion. I predicted there were two votes for a finding of possible religious discrimination, based on Trump’s repeated statements during the campaign that he wanted a Muslim ban — but Judge Clifton was clearly skeptical of this claim. The Court dealt with this by saying: “The States’ claims raise serious allegations and present significant constitutional questions” (language clearly inserted by Judges Canby and Friedland) but refused to use this as a ground to uphold the TRO, instead reserving the issue for later, after further litigation in the District Court (an evident concession to Judge Clifton to get him on board with this opinion).

This means that Donald Trump’s mouthing off about a Muslim ban wasn’t the reason for today’s decision — but it could still have legal consequences down the line.

In other aspects more of interest to lawyers than others, the court (as predicted) found standing based on the states’ proprietary interests, and treated the injunction as an appealable preliminary injunction rather than a TRO proper, because of the length of the briefing schedule. (These are also aspects I predicted correctly based on the oral arguments.)

In summary, this is a solid legal opinion and I don’t see it being reversed by the Ninth Circuit en banc or by the U.S. Supreme Court. The judges did their jobs and they did them well. They won’t get a lot of credit for this from political partisans, but they’ll get it from me.

[Cross-posted at RedState.]


  1. Ding.

    Comment by Patterico — 2/9/2017 @ 6:59 pm

  2. Excellent analysis. I also think the court left the door open for the President to fix this with a more limited, carefully worded Order. The court’s order focuses on the impact of the Order, not the intent, so Trump’s advisers shoukd encourage him not to take this personally. Because this needs to be fixed soon because Obama’s holdovers in the State Department and DHS have used this week reportedly let some dangerous refugees into the country.

    Comment by DRJ — 2/9/2017 @ 7:09 pm

  3. Thanks for the series of posts analyzing the legal issues raised by this EO. Clear and understandable, even for a non-lawyer. :-) Left-wing opposition to the policy was and is to be expected. But with most of the conservative media refusing to criticize the new administration, it’s refreshing to read a contrary opinion from the conservative/libertarian side of the aisle.

    Comment by Libby — 2/9/2017 @ 7:13 pm

  4. Thanks DRJ and Libby. This will be the only place I will be discussing this post as of now.

    Comment by Patterico — 2/9/2017 @ 7:28 pm


    Comment by Draggingtree — 2/9/2017 @ 7:32 pm

  6. So if Trump is as concerned about implementing the policy as quickly as possible, especially in light of the threat of bad actors before or without such a policy, it sounds like the best thing he could do is withdraw this order, and issue a new, more carefully crafted one.

    But that just doesn’t sound like anything I’ve ever heard happen before, with or without Trump in the White House. Is there precedent? I’m guessing that, as a tactic, continually withdrawing and re-issuing orders to sidestep legal chellenge would not go over well. But in this case, why wouldn’t it be a good idea?

    Comment by Quibus Vigilius — 2/9/2017 @ 7:40 pm

  7. So if Trump is as concerned about implementing the policy as quickly as possible, especially in light of the threat of bad actors before or without such a policy, it sounds like the best thing he could do is withdraw this order, and issue a new, more carefully crafted one.

    Bingo. But that’s what you do if you care about solving the problem. If you care about ego, appearances, and the like, you go to war with the courts instead. Which do you think Trump will do? Me too.

    Comment by Patterico — 2/9/2017 @ 7:46 pm

  8. Well anyone that has read my previous comments on this issue knows that my concern was with the inclusion of Legal Residents (Green Card holders, which by the way is actually white in color….). I also would think that the best remedy is to issue a new order, better written and without the problem of the legal residents but we all know that Trump has to always be right and he will push forward to the Supreme Court. I do think that the law allows the President to limit visas and immigration, as has been done by other Presidents but not in the broad sweeping manner which Trump attempted. He got poor advice.

    I am disappointed that some people are so blinded by Trump Bluster that they do not see his words, his own rhetoric throughout the campaign and even in the past three weeks as being detrimental to his case. The best thing his advisors could do is take the man’s Twitter account away from him. If he continues along these lines Maxine Waters will just be helped in her quest.

    Comment by Marci — 2/9/2017 @ 8:13 pm

  9. DJT has at least two really important principles to look at.

    First, the importation of terrorists. Second, letting stand the outrageous over-reach by the Judiciary. This is a door that simply must be slammed shut.

    I would fully agree with anyone who insists that he has to go straight to SCOTUS now. If he does not, he would instantly obviate any notion of urgency as to the ban.

    I’d take the chance that a few more days before petitioning Kennedy would be worth the security risks. If he punts?

    A new EO. But, if y’all think a more narrowly tailored EO will survive never-ending bites of apples across the Circuits following a Kennedy punting, you’re cray cray.

    Comment by Ed from SFV — 2/9/2017 @ 9:18 pm

  10. Patterico,

    How about this for your counter-point?
    Basically, the view for those that don’t want to read it is that the court took in the pre-election statements to help them make a ruling. Which seems to go against the “Opinion Clause” (!/articles/2/essays/88/opinion-clause). I think its a reach, but provides an interesting debate about a clause that isn’t commonly discussed in the media punditry about the workings of the US Constitution.

    Comment by Charles — 2/9/2017 @ 9:50 pm

  11. A new EO which fixes the due process problems in this EO would certainly be challenged. By Washington, among others.

    It might very well get another TRO. But that TRO would be based *entirely* on the religious discrimination/improper motive claim, which is much, much, much harder to support, and much more vulnerable to attack on appeal.

    I think it’s highly likely the Supreme Court would either uphold the current TRO in its entirety *or* rewrite it so that it applies just to those classes of aliens with due process rights. A TRO based just on the religious/improper motive claim, on the other hand, I think the Supreme Court would stay.

    Comment by aphrael — 2/9/2017 @ 10:58 pm

  12. The court did not rely on Trump’s statements to make its ruling. It relied on the broad terminology of the EO, its impact on LPRs and visa holders, and the resulting harm to people from or associated with Washington state.

    Comment by DRJ — 2/10/2017 @ 9:02 am

  13. I agree with aphrael. He needs to focus on writing a new EO instead of nursing his grievances.

    Trump believes you are either with him or against him. I hope he stands down this time and learns from it for the future. But if the past is any indication, he will respond with victimhood and vengeance.

    Comment by DRJ — 2/10/2017 @ 9:09 am

  14. Charles,

    Washington (in essence) put forward two arguments for why the EO is illegal.

    The first argument is that it violates the fifth amendment by denying various people (two examples: legal permanent residents, visa holders present in the country who wish to go on vacation outside of the country and return) the due process to which they are legally entitled before they can be excluded. Not everyone who is excluded is entitled to due process, but *some* are, and the failure to provide it is unconstitutional.

    The second argument is that it is motivated by animus towards people who are Muslim, and that motivation makes it subject to a higher level of scrutiny, to make sure that it’s not simply a ruse designed to hide the religious animus.

    The Ninth Circuit decision rests almost entirely on the first argument. It notes that the second argument exists, and that it raises interesting and important questions, but it *does not decide the outcome based on that*. It doesn’t need to; the due process denial argument is enough for it to make the decision.

    Trump’s pre-election statements are relevant to the question of improper religious animus in that they provide a window into his mind, and those statements will be introduced in evidence at the district court hearing on the merits of the case.

    But they are not relevant to, and are not used in any discussion relating to, the improper denial of due process to people that are entitled to it.

    Comment by aphrael — 2/10/2017 @ 11:30 am

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