• Dean Krent: Thoughts on the February 7 Ninth Circuit Oral Argument on the Immigration Executive Order

    by  • February 8, 2017 • Faculty Commentary, Presidential Transition • 0 Comments

    By Dean Harold Krent

    First, kudos to the Ninth Circuit Court of Appeals for livestreaming the oral argument.  The technology was not perfect, but opening the hearing to all citizens represents a needed step toward transparency in light of the controversy engendered by the Executive Order.

    Second, the panel was prepared and peppered both sides with tough questions.  The judges, despite their different ideological leanings (Judges Canby and Friedland were appointed by Democratic presidents, and Judge Clifton by a Republican), bolstered the image of an independent judiciary committed to the rule of law.

    Third, despite the risks of predicting votes based on questions in oral arguments, the panel in my view is leaning towards recognizing that the State of Washington enjoyed standing to bring the lawsuit.  At least two of the judges seemed convinced that the State could sue in its proprietary capacity because of its allegations that state universities would suffer if students and professors could not get into the country.  In any event, the DOJ attorney conceded that individuals and their families who were directly affected by the Executive Order had standing, so that even if the State of Washington could not bring suit, other plaintiffs could.

    Fourth, on the merits, there was little discussion of the question of the Order’s inconsistency with the 1965 statute, other than apparent agreement that the statute only prohibits country of origin categorization with respect to granting immigrant visas, and the President’s Order reaches far more broadly.

    With respect to the merits on the constitutional claims, the DOJ lawyer did not claim that application of the ban to permanent residents was permissible.  Whether the DOJ still contends that the ban can be applied to those who have already received visas is not clear.  Most of the merits of the constitutional discussion focused on whether the Ninth Circuit could consider President Trump’s comments (i.e., that the Order was a “Muslim Ban” in considering the constitutionality of the Order under the Establishment Clause.  Two of the judges seemed so inclined.  In particular, they addressed the Larson v. Valente precedent that held that a statute that did not overtly discriminate against a particular sect might still be challenged as unconstitutional.  The other judge, in contrast, repeatedly asked how the Order could be discriminatory given that only 15 percent of the Muslim world was affected.   The attorney for the State of Washington missed an opportunity to reject the judge’s framework.  First, he could have noted, the ban affects almost only Muslims, and second, a clear majority of the refugees we have accepted in the last five years hails from those countries.  Those percentages support the State’s position.

    Fifth, the panel chided both sides for urging a quick resolution of the case even though the attorneys each argued that they had not had time in district court to introduce evidence bearing on the case.  In light of the above exchange, the Court may well determine that the TRO issued below is not tantamount to a preliminary injunction and thus is not appealable.  If the Court chooses that route, it would direct an expedited briefing schedule on the State’s request for a preliminary injunction.  If the TRO is not appealable, then the Court could treat the DOJ’s motion for stay as a mandamus action and deny it because of the higher burden on the DOJ to prove harm.  On the other hand, there was much discussion of the breadth of the trial court’s injunction, and the Court, if it reaches the issue, may well limit the scope of the injunction to residents from the seven countries who have yet to receive visas, retaining the district court’s injunction to permit those who have already received visas to travel.  The Ninth Circuit is likely to rule by Friday, February 10.

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