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7 Ways Ninth Circuit Judges Totally Threw Shade at Trump’s Arguments for Travel Ban


If you don’t have time to read through the 29-page Ninth Circuit order which continues to block the Trump travel ban, we did it for you and let this serve as your cheat sheet.

The three judge panel ruled unanimously (3 to 0) and rebuked the Trump administration’s attempt to get a Temporary Restraining Order (TRO) lifted.  The TRO ordered by Seattle federal judge James Robart puts a temporary halt to most of President Trump’s controversial immigration order which bans refugees from entering the country, and prohibits citizens from 7 Muslim-majority countries as well. For now, because of the Ninth Circuit’s ruling, the stay will remain in place, and President Trump will not be allowed to enforce his executive order yet.

However, it is important to note that this is just a preliminary ruling. The judges have not weighed in on the merits of the case nor have they made an ultimate determination about whether the executive order is constitutional/legal.  Despite that, the judges pretty much shot down all of Trump’s DOJ lawyers legal arguments to get the executive order reinstated, and in the process even threw some major shade at the White House over how this was all implemented.

Here’s what the judges found:

# 1 — The court found that the plaintiffs (the States of Washington, and Minnesota) do actually having standing to sue. The Trump administration lawyers argued that court should not even consider the case because the States do not have an interest — suffered a concrete actual or imminent injury- so therefore they don’t have a right to sue. The judges didn’t agree. They found that since, for example, two visiting scholars at Washington State University were not permitted to enter the United States, the states demonstrated standing to assert the rights of the students, scholars and faculty affected by the executive order.

#2 — No, the court found the President does not have a blank slate to make immigration decisions, and his actions are “reviewable” by courts. In briefs, the government contended that the court should not uphold the TRO because the President has “unreviewable authority to suspend the admission of any class of aliens.” In other words, Trump’s people said the courts can’t weigh in on this because Trump has full power over immigration policy. The judges didn’t buy that argument either, slapping it down pretty quickly. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the opinion reads. The court further states while they are mindful the courts must give deference to a president’s immigration and foreign policy determinations, the Government’s “authority and expertise in [such] matters does not automatically trump the Court’s own obligation to secure the protection the Constitution grants to individuals even in times of war.”

#3 — The constitutional protections granted by the Fifth Amendment’s Due Process clause are not limited to just citizens — and apply to non citizens (aliens) as well.  In other words, noncitizens are covered by the Constitution, so it’s fair for the lower courts to rule on whether they are adequately protected. The court also found that the Government has not established that the Executive order provides lawful permanent residents with constitutionally sufficient process to challenge Trump’s order.

#4 — There’s more! As one Professor puts it, the Ninth Circuit “throws some shade” on the Trump administration for not having act together.  In one part of the opinion, the Court pretty sharply condemns the White House for clearly not fully vetting the Executive Order before Trump signed it. As you might recall, shortly after the order came out, the White House Counsel put out a letter clarifying the order by stating that it did not apply to lawful permanent residents. The Ninth Circuit fired back. “The White House counsel is not the President, and he not known to be in the chain of command for any executive Department. Forever in light of the Goverment’s shifting interpretations of the Executive Order, we cannot say the current interpretation by the White House counsel, even if authoritative and finding” will persist. [emphais added] In other words, the White House doesn’t seem to have their act together on this, so we can’t take the White House Counsel’s word on who will be affected.

#5 — The lower court’s TRO is not really over broad, and should apply nationwide. The Trump administration tried to argue that the stay issued by federal judge James Robart should be lifted because it was too broad and overreaching.  The three judge panel didn’t agree. They also declined to limit the stay’s geographic scope finding that “such a fragmented immigration policy would run afoul” of requirements which call for uniform immigration policies across the country

#6 — On whether the law is discriminatory? The court found that they can take into account prior statements made by Trump about wanting a “muslim ban.”  Even though Trump’s attorneys say the actual executive order doesn’t single out Muslims (which is true), the court found that previous statements are fair game to be considered when making the ultimate determination as to whether the law is discriminatory. However, the three judge panel did not weigh in on whether they thought it was. Instead, the judges simply said that the States’ claims raise serious allegations and “present significant constitutional questions.”  So basically, the Ninth Circuit judges punted on the entire discrimination thing for now.

#7 — The Trump administration failed to demonstrate why this order is needed and would improve America’s security. The judges weren’t satisfied with the Trump administration’s explanation that this order was urgently needed to ensure safety. The judges found no evidence that any alien “of the countries named in the Order has perpetrated a terrorist attack in the United States. ”

What happens next? The Trump administration can either request an en banc review by 11 judges at the Ninth Circuit or they can directly appeal to the United States Supreme Court. Stay with for all of the latest legal analysis. 

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Rachel Stockman is President of Law&Crime which includes Law&Crime Productions, Law&Crime Network and Under her watch, the company has grown from just a handful of people to a robust production company and network producing dozens of true crime shows a year in partnership with major networks. She also currently serves as Executive Producer of Court Cam, a hit show on A&E, and I Survived a Crime, a new crime show premiering on A&E this fall. She also oversees production of a new daily syndicated show Law&Crime Daily, which is produced in conjunction with Litton Entertainment. In addition to these shows, her network and production company produce programs for Facebook Watch, Cineflix and others. She has spent years covering courts and legal issues, and was named Atlanta Press Club's 'Rising Star' in 2014. Rachel graduated from Northwestern University's Medill School of Journalism and Yale Law School.