Today, February 9, 2017, the Ninth Circuit Court of Appeals rejected the Trump Administration’s request to reinstate the January 27 Executive Order that barred people from seven majority-Muslim countries from entering the United States. The court ruled that the government had not proved its case.
Legal issues in a nutshell
The administration implemented its abrupt change in policy without any notice to the people who were affected—even to people who had already been granted visas to immigrate here, after years of “vetting,” or to those who were already legal permanent residents of the United States who happened to be traveling out of the country at the time. The states of Washington and Minnesota, which challenged the order, argued that this action violated the Due Process Clause of theFifth Amendment to the United States Constitution. Essentially, the Due Process Clause requires the federal government to give notice and an opportunity to be heard before depriving individuals of life, liberty or property (A similar clause in the Fourteenth Amendment applies to actions by the states). The states also argued that the Executive Order violated many federal statutes, including the Immigration and Naturalization Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
The states of Washington and Minnesota presented ample evidence that their residents and their state universities were harmed by President Trump’s January 27 Executive Order. Students and faculty members at state universities were denied reentry into the United States, which disrupted the activities of the universities. Families were separated.
When the district court entered its temporary restraining order, it found that: (1) the plaintiffs would be irreparably harmed if the Emergency Order remained in effect; (2) the plaintiffs were likely to win at trial; (3) the government would not be harmed by the delay; and (4) the public interest favored the plaintiffs. So it was the government’s burden to show that some government interest, such as national security, outweighed all of these concerns.
The administration didn’t challenge any of the trial court’s factual findings. It didn’t show that any government interest would be irreparably harmed unless the court’s order was stayed (as is legally required). Instead, it argued that the court had no power to review the president’s determination that the Executive Order was necessary to protect national security. In other words, the Executive Order was lawful and necessary because he said so. And no one, including the court, had any right or power to question his action.
The president is going to have to learn that the government is not a business. The constitution doesn’t disappear just because he finds it inconvenient. Constitutional rights are available to everyone, not just citizens. And “because I said so” isn’t a trump card in litigation (pun definitely intended).