Over the last 24 hours, several courts have issued opinions regarding President Trump’s recent executive orders banning entry of certain nationals and refugees into the United States. While recent court opinions have imposed temporary restraining orders, how the executive orders fare on appeal (whether they are considered legitimate exercises of executive power or whether they violate the Establishment Clause) may hinge on whether Trump’s and Administration officials’ statements regarding the travel ban may be considered in determining the purpose of the executive orders.
Following President Trump’s two executive orders, numerous lawsuits were filed across the nation. After Executive Order 13,769 was issued on January 27, 2017, district court Judge Robart issued a temporary restraining order against enforcement of certain portions of the Executive Order in Washington v. Trump. The Ninth Circuit denied the Government’s motion for a stay of the temporary restraining order in that case.
The Trump Administration then issued another Executive Order, No. 13,780 on March 6, 2017, designed to replace the prior Order. This Executive Order made some changes, suspending entry for nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for 90 days, but did not apply to lawful permanent residents, holders of valid visas, dual nationals or certain other categories of people. It also included a “waiver provision” allowing foreign nationals of these countries to seek entry on a case-by-case basis. Another section of the Executive Order suspends refugee admissions for 120 days and also has a waiver provision to be determined on a case-by-case basis. Once again, numerous lawsuits were filed nationwide.
District Court Decisions
In the last day, two federal judges have blocked portions of this new Executive Order from enforcement. The first decision came yesterday evening on March 15, 2017, from district court Judge Watson in Hawaii v. Trump. Judge Watson’s order enjoins enforcement of the sections discussed above “in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas . . . pending further orders from this Court.” The Order therefore applies worldwide. In issuing this order, Judge Watson found that, based on numerous statements by Trump and Administration officials, “a reasonable, objective observer . . . would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose” and would result in irreparable harm. Notably, Judge Watson relied on precedent set forth by the Ninth Circuit’s opinion in Washington v. Trump that courts could look beyond the plain language of the law for evidence of its purpose. Judge Watson does, however, caution that prior statements by Trump or Administration officials do not “forever taint any effort by it to address the security concerns of the nation” and “context may change during the course of litigation.” This morning, March 16, 2017, a Maryland district court Judge Chuang also issued a restraining order in International Refugee Assistance Project v. Trump. Judge Chuang also pointed to the history of public statements as evidence that the Executive Order represented a “Muslim ban.” Chuang’s order will apply only to the portion of the Executive Order suspending of nationals from six countries and does not sweep as broadly.
Ninth Circuit Dissent from Denial of En Banc Hearing in Washington v. Trump
While the judges in Hawaii and Maryland have blocked enforcement of portions of the new Executive Order, five judges from the Court of Appeals from the Ninth Circuit issued a dissent on March 15, 2017 from the Ninth Circuit’s denial of reconsideration of Washington v. Trump by an en banc panel. As noted above, the Ninth Circuit previously upheld a district court’s temporary restraining order. Following the issuance of the new Executive Order, the U.S. government filed an unopposed motion to dismiss its underlying appeal, which was granted. Despite the mootness of the appeal, one judge requested rehearing by the full court, but did not garner the votes for rehearing. These five judges, all Republican appointees, signed a dissent stating that the original Executive Order “was well within the powers of the presidency” and that the Ninth Circuit’s opinion was a “fundamental error.” These five judges argued that “Even if we have questions about the basis for the President’s ultimate findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.” The dissent also argues that the original Ninth Circuit’s panel opinion “stands contrary to well-established separation-of-powers principles.” Ultimately, the Ninth Circuit will likely have another opportunity to rehear these issues in the context of Hawaii v. Trump.
There are a number of ongoing suits against the travel ban. A roundup of documents for each of the cases is available here.