*Truth be told, it is not that big of a thumping but I have been itching to use that headline and get it over with.
As you may know, today a 3-judge panel for the 9th Circuit of the Federal Court unanimously denied the Trump administration’s emergency motion for a stay of the Temporary Restraining Order issued by Judge Robart last week. You may have caught it on the news. Let us take a moment to examine some of the Order by the Court and parcel out what they meant from what they said. This kind of translation will hopefully help those who got their law degrees from Twitter and Facebook.
What they said :
“We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage…..”
Translation: You are both bringing us some weak applesauce here. There simply was no evidence presented by the Government that the TRO was harming anyone. And frankly, while the States of Washington and Minnesota established harm (more on that later), some examples they used were more inconvenience than anything else.
What they said: “We hold that the Government has not shown a likelihood of success on the merits of its appeal nor has it shown that failure to enter a stay would cause irreparable injury and we therefore deny its emergency motion for a stay”
Translation: We have no idea if these orders will pass constitutional muster later or not and neither do the parties. But let’s cool our jets here until somebody makes that ruling since no one is losing a thing by putting on the brakes.
What they said“To establish Article III standing, a plaintiff must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that favorable decision will redress that injury”
Translation: You can’t just come in here all willy-nilly. You must have an interest, a harm, some skin at risk or already taken. In other words, suing ain’t easy.
What they said: “The States argue that the Executive order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law”
Translation: They have standing dip****.see Singleton v. Wuff 428 U.S. 106,114-16(1976) and Runyon v. Mccrary, 427 U.S. 160, 175 (1976). And the standing is so obvious no one is arguing against the idea that State schools are units of the State. It is so obvious, you are not even making hail mary on this one.
What they said” The necessary connection can be drawn in at most two logical steps: (1) The Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for”
Translation: The public university system can lose talent with these orders as they stand. The public university students can lose access to research and high quality professors. the public university professors can lose their incomes or research with these denials.
Well that pretty much sums up the standing issue. Federal Issue. Real harms. Let us move on to reviewability
What they said: “The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches-an uncontroversial principle that is well-grounded in our jurisprudence See e.g. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)”
Translation: Government argues that the courts should generally defer to the Executive and Legislative branches on immigration and national security issues and we do not disagree.
What they said:“The Government indeed asserts that it violates the separation of powers for the judiciary to entertain a constitutional challenge to executive action such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy”
Translation: The Government argues we can not review their actions because we usually show great deference in this area. They are pulling that out of their ass.
What they said:“Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas”
Translation: Just because we tend to defer, it does not mean we can never review and lay some smackdown on you if we have jurisdiction. And we do.
What they said: Courts are not powerless to review the political branches actions with respect to matters of national security Alperin v. Vatican Bank, 410, F.3d 532, 559 n.17 (9th Cir.2005). To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals, even in times of war.
Translation: The other two branches of Government have their jobs to do and their own expertise to address those jobs. The Court also has its own job to do and that sometimes means keeping a close eye on the actions of the other two branches.
What they said: In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
Translation: Bitch, do you not see this Third branch over here?
What they said: Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Hamdi v. Rumsfield 542 U.S. 507 at 536 (2004)
Translation: We’re still here.
So what now?
Remember all that happened is that the TRO remains in effect. There can still be a request for an emergency stay from the SCOTUS justice for the 9th Circuit: Anthony Kennedy.
And after a loss like this (3-0 by appointees from 3 different presidents) maybe the administration slows down, waits until Gorsuch gets confirmed and then tries to get it before a full 9 member SCOTUS.
And that’s not even counting the other challenges out there on other grounds.
The smart play for the administration for a win of sorts? Just modify the orders to allow people who would be harmed to travel. The risk? That his base will think he let them down. Might think it’s better to go down swinging instead of staying upright without punching. But those are political issues, not legal ones.
One odd thing here was the President’s reaction, though by this point it really is not surprising. He tweeted out ” See you in court”.
Odd because it is as if he thinks nothing scares lawyers who argue in court more than the idea of having to go to court, especially after they’ve already beaten your position twice and WANT the chance to do it again. Will those same arguments work in another circuit? What about the other arguments on the table that are still undecided?
So we do not know what is next, but whatever it is, we’ll wrestle with it.