President Trump’s executive order restricting immigration into the United States has spurred nationwide protests. On Thursday, the United States Court of Appeals for the Ninth Circuit issued an order that continued to block it. If you’re wondering what that means moving forward or how we got here in the first place, you’ve come to the right place.
Federal courts can be a confusing beast, but this article will attempt to explain the background of this executive order, what it means, and what the judges on the 9th Circuit did about it.
I bet you remember from high school civics class that the federal government is made up of three branches: (1) the legislative branch, or both houses of Congress, (2) the executive branch, directed by the President, and (3) the judicial branch, or the federal courts. All three play a role here.
The Court System
The courts are the branch of government that “say what the law is” – meaning they interpret the laws that Congress creates and the President enforces. When another branch of government goes beyond the bounds of what the law allows them to do or what the Constitution permits, the courts can strike down those actions that are inconsistent with existing law. For example, when states banned interracial marriage, the Supreme Court struck down those laws (eventually) as inconsistent with the Constitution, the supreme law of the land.
The federal court system has three levels: district courts, circuit courts, and the Supreme Court. We have 94 district courts in the U.S. across the states and territories. They cover distinct geographic regions. For example, Iowa has two – one for the Northern District and another for the Southern District. Here, the state of Washington filed the major lawsuit regarding Trump’s executive order in the Western District of Washington.
When a party loses at the district court, they can appeal to the circuit court. There are 13 of these, and they also generally cover geographic regions. These appeals are heard by panels of three judges. Because the lawsuit was filed in Washington, the appeal went up to the 9th Circuit, which you can see covers the West Coast.
Lastly, the final possible stage in the process is the Supreme Court in Washington, D.C. The court currently has eight justices, but it typically has nine (and Neil Gorsuch, currently a judge on the 10th Circuit, has been nominated for that ninth seat). It seems very likely at this point that a lawsuit about this executive order will reach the Supreme Court, but it’s less clear when that will happen.
Many appeals are filed in circuit courts by those who lose at district courts, and in the Supreme Court by those who lose at circuit courts, but very, very few of those appeals are granted. The vast majority of appeals are not heard and the lower court’s decision remains in effect.
One misleading fact that supporters of the President’s executive order are sharing is that the 9th Circuit has an 80% “reversal rate.” This does not mean that 80% of its decisions are reversed. Instead, it means that 80% of the of appeals from it that the Supreme Court agrees to consider are reversed.
Roughly one out of every 1,000 circuit court decisions will be reviewed by the Supreme Court; naturally, the Supreme Court is much more likely to review a case if the Court’s justices believe that it has been decided incorrectly by the circuit court. Accordingly, the thirteen circuits have “reversal rates” ranging from 55% to 83%.
This case stems from an executive order issued by President Trump one week into his presidency on January 27. Executive orders come from the President and direct the executive branch how to operate. Because the President is the most senior official in the executive branch, these essentially have the force of law.
Presidents have long issued executive orders and have reversed executive orders of their predecessors. For example, the Mexico City policy (which blocks federal funding to some organizations that provide abortion counseling or support abortion rights) was instituted by President Reagan, rescinded by President Clinton, re-instituted by President George W. Bush, re-rescinded by President Obama, and has now been re-re-instituted by President Trump.
Again, if you recall high school civics, you’ll remember that the President doesn’t have law-making power. That’s reserved to Congress. So how can the President issue orders that have the force of law? Sometimes, the authority to make a decision is delegated to the President by a law from Congress.
In this case, President Trump claimed the authority for his executive order existed under a law that had previously been passed by Congress called the Immigration and Nationality Act. A portion of this law states that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens[.]” 8 U.S.C. § 1182(f).
The Order and the Lawsuits
Citing his authority under that law as well as inherent constitutional power vested in the President, Trump issued an executive order that barred individuals from seven Middle Eastern and African countries from entering the United States for 90 days.
The order prevented visa-holders as well as refugees from these nations from entering America. It suspended the U.S. refugee program for 120 days and suspended Syrian refugee admission indefinitely. It also ordered that when the refugee program began operating again, it would prioritize those with religious persecution claims if the refugee making the claim practiced a minority religion in their home country.
The backlash was swift. The order took effect immediately, meaning individuals traveling to the U.S. at the time it was issued were detained when they landed at airports across the country and others were stopped from boarding flights to America. Lawsuits were quickly filed, and by the next night on January 28, Judge Ann Donnelly in the Eastern District of New York issued an order preventing the government from deporting any person from the seven barred countries who had already arrived in the United States.
Tensions escalated when the state of Washington filed a lawsuit against President Trump. Washington claimed that its public universities were harmed by the order because visiting scholars, instructors, and employees at Washington State University and the University of Washington were prevented from entering the country.
On February 3, Judge James Robart ruled in favor of Washington state and essentially blocked all of the executive order nationwide. Federal government lawyers representing the President quickly appealed to the 9th Circuit.
The 9th Circuit’s Decision
The three-judge panel of 9th Circuit judges unanimously upheld Judge Robart’s order and continued to prevent the executive order from operating. There are two major constitutional provisions that the court relied upon to reach this decision: the right to due process under the 5th Amendment of the Constitution, and restrictions on government endorsement of religion, or discrimination against a particular religion, in the 1st and 14th Amendments.
The Due Process Clause prevents the government from depriving a person of their rights without providing them “the opportunity to present reasons not to proceed with the deprivation and have them considered.” Without informing an individual that they cannot travel to the U.S. and giving them the opportunity to be heard at a hearing, the government violates their right to due process.
The government argued that the Due Process Clause doesn’t apply to many of the people affected by the executive order. This right is afforded to all persons in the United States, whether they are here legally, illegally, permanently, or temporarily. But it is also afforded to certain people outside of the U.S., including non-citizen lawful permanent residents of the U.S. who are attempting to re-enter the country.
The 9th Circuit also acknowledged that this right may be afforded to visaholders who wish to temporarily depart and later return, to refugees, or to those who have a relationship with a U.S. citizen or institution (like a public university) who may themselves be harmed by the immigration restriction.
The government offered a smaller scope of the executive order that would have applied it to fewer people, but the 9th Circuit determined that it wasn’t good enough. “There might be persons covered by [Judge Robart’s decision] who do not have viable due process claims,” the panel agreed, “but the Government’s proposed revision leaves out at least some who do.” Erring on the side of over-protection rather than excluding some category of persons with due process rights, the 9th Circuit determined, was the better move.
The 9th Circuit also addressed concerns about the executive order violating religious rights. The 1st Amendment prohibits any “law respecting an establishment of religion.” If a law has a religious purpose, or if it prefers one religion over another, it violates the 1st Amendment’s Establishment Clause. Similarly, if a law discriminates among persons based on religion, it may violate the 14th Amendment’s Equal Protection Clause.
Washington’s argument on this point relied on statements made outside of the text of the executive order itself. For example, Donald Trump proposed a “total and complete shutdown of Muslims entering the United States” during the presidential campaign, and Rudy Giuliani, one of his advisors, said on Fox News that Trump had asked him how to do a Muslim ban legally. It very well may be the case that Trump’s own words during the campaign, and the words of his advisors, could be sufficient to prove a “religious purpose” or an intention to discriminate against Muslims with this executive order.
The provision granting preferential treatment to persons subject to religious persecution if they practice a minority religion in their country was problematic for similar reasons. Trump has expressed an interest in preferring Christian refugees from the Middle East. The seven nations to which the executive order applied are all majority Muslim nations. While the 9th Circuit did not directly state this, the issue will surely be part of future litigation as Washington state continues to claim that the provision violates the Establishment and Equal Protection Clauses.
What Happens Next?
Because Judge Robart had already ruled in favor of the state of Washington at the district court level, it was the federal government who had the burden of proof at the 9th Circuit. This means that the 9th Circuit’s decision was not one that explicitly said “Constitutional rights have been violated,” but instead it said “The government did not prove that constitutional rights have not been violated.”
This could be important moving forward as we look ahead to the Supreme Court. With the Court at an irregular size of eight justices, 4-4 decisions are possible. These split decisions leave the lower court’s order in effect. If the government were to appeal this decision to the Supreme Court (and the Supreme Court were to agree to hear the case at this stage), Trump would need five of the eight justices to side with him in order to win. If four or fewer sided with the President, Washington state would still be victorious.
Even if that were to happen and Washington were to win at the Supreme Court, we wouldn’t be done. With its lawsuit, Washington state sought temporary and immediate emergency relief from the courts. They’ve won so far, but the decision is only temporary. Eventually, the case will return to the district court level where the full, regular process of a lawsuit will occur. From there, it could return to the 9th Circuit and to the Supreme Court for a second time.
In that second round of litigation – or on a trip to the Supreme Court now, if it does go there – the decision could look much different based on some other aspects I didn’t discuss in this article. Intricate judicial doctrines such as appellate jurisdiction, third-party or parens patriae standing, reviewability, mootness, or something totally different could be the tool that the courts use to decide this case. If that happens, be sure to check back here with us at The Tailgate Society for what that means.
For now, though, President Trump’s seven-nation immigration ban is no more. And, as always, if you have strong opinions about this or any other issue that affects our country, contact your elected representatives and let them know what you think.