The Six Issues The 9th Circuit Ruled On In Rejecting Trump’s Appeal


Dan McLaughlin reviews how the Ninth Circuit has delivered its decision in State of Washington v. Trump. The court rejected the Trump Administration’s appeal from the temporary restraining order preventing the Administration from enforcing President Trump’s executive order on refugees.

The decision by a 3-judge panel (appointees of Presidents Carter, George W. Bush and Obama) is unanimous and delivered “Per Curiam,” meaning no one of the three judges signed the opinion (a practice that tends to be more common when a court is writing in haste). At no point did the court decide that Trump violated the Constitution, but it did conclude that there was enough to such claims to leave the lower court’s order in place, barring enforcement of the executive order, until those claims could be resolved in full. This is what they ruled specifically:

Immediate Appeal

The court ruled that the government could appeal this order immediately, a victory for the Administration. Temporary restraining orders are normally just that – temporary – so usually they can’t be appealed until the lower court holds a full hearing to enter an injunction. Sometimes, in an emergency, they’re entered without even hearing from one side, but Judge Robart heard arguments from both sides and entered an indefinite injunction, so the appeals court felt that his order was ready to be appealed even though the parties hadn’t offered much evidence yet.


The court also concluded that the States of Washington and Minnesota had legal standing under Article III of the Constitution to bring a court case to challenge the order. Federal courts require that a party bringing a lawsuit have some personal stake in it. You cannot make a federal case out of something that doesn’t affect you directly.

The Ninth Circuit panel also concluded, that the states had standing to challenge “religious discrimination” under the Establishment Clause of the First Amendment. The court did not actually end up concluding that the Trump Administration had engaged in religious discrimination; it just found that it didn’t have enough time and evidence to justify reversing the district judge on that issue.

Checked and Balanced on Immigration

The court rejected the argument made by the Administration that Executive Branch determinations in the area of immigration are beyond the review of courts. The court’s opinion did not conclude that Trump lacked the power as president to issue the order, but didn’t resolve it in his favor either.

45 Is Probably Not Going To Win This

The court found that the Administration was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visa-holders” who were barred from the country. The court relied on the Supreme Court’s 2001 decision in Zadvydas v. Davis, a 5-4 opinion written by Justice Breyer, which held that people charged with being illegally in the U.S. have a right to due process to challenge that before being deported. But nothing in Zadvydas would extend rights to people denied entry, and the Ninth Circuit simply concluded that if its order was too broad, it was up to the White House to write a narrower one.

Addressing why people without an existing visa might have due process rights, the 9th Circuit notes, according to the Supreme Court, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all “persons” within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’ These rights also apply to certain aliens attempting to reenter the United States after traveling abroad.”

Discriminatory Against Muslims

The court upheld the temporary restraining order against Trump’s immigration order on grounds of religious discrimination against Muslims, even though the order is “neutral” on its face. The court cited Trump himself, who said it was a Muslim ban, which violates the Establishment and Equal Protection Clauses as it is intended to disfavor Muslims.

Refugee Ban Not Urgent

The court rejected the government’s argument that a refugee ban was urgent given the lack of any evidence submitted thus far in the case to support urgency. Any evidence of imminent national security threats is likely classified and not properly offered to judges and litigants without security clearance, but the Administration needs evidence of a more broad-based nature to support the breadth of its travel bans. Much of the opinion’s coda deals with how early it is in the case, and how little opportunity any judge has had to give real review to any evidence.

The Constitution

Here, the court is claiming jurisdiction over the presidency. There are people arguing that aliens outside the country do not have rights under the US Constitution. These people do not understand our Constitution. The Constitution does not grant rights. It defines the limits of the government’s authority.

While it is expressly constitutional (control over immigration was enumerated to Congress and Congress gave it by statute to the executive branch to administer), the question of whether the government is acting outside its enumerated authority can be brought to the court. The Constitution was written explicitly to set just this process up. Every one of the three branches has means of legally blocking the actions of the other two in one form or another.

9th Circuit Reasoning

The trial judge entered a temporary restraining order. This is an emergency order intended to keep everything in status quo until the court has the ability to convene a hearing on a preliminary injunction. It is a short-term order to essentially keep everything in place until the court can figure out exactly what is going on. As the Ninth Circuit pointed out, it is rare that an appellate court ever reviews a temporary restraining order because of their extremely short-term nature.

For some reason, Trump did not ask the Ninth Circuit to reverse the temporary restraining order or to find that the trial judge had committed legal error. Instead, he asked that the temporary restraining order be “stayed.” In effect, he asked for an emergency order asking that another emergency order not be enforced. Stays of a court order are very difficult to obtain even in the best of circumstances. In the context of this case, it required Trump to prove that he or the country would suffer irreparable harm if he was not permitted to impose irreparable harm on others. When you look at it this way, it is easy to see why the Ninth Circuit disagreed with him.

The Bottom Line On 45

The administration could just put out a new EO that is not as narrowly tailored. That would be a simple fix, but the problem is Trump is like a kangaroo: He can’t back up.

The President issued the order late on a Friday afternoon when he knew his frontline troops wouldn’t be able to reach any higher-ups to ask for clarification or direction on the order. This suggests he suspected there were some questions going to be raised about the order that he didn’t want raised.

When the question about due process was raised, he claimed he had authority to stop green card holders. Then he said including green card holders was a mistake, ignore that, and cross those guys off the banned list. Then he claimed the order never applied to green card holders in the first place and it was only TSA and ICE that thought it did.

Trump is never wrong, and he’ll call anybody every name in the book that says otherwise. Issuing a new EO would be an admission that just maybe the first one had a flaw in it. Trump obviously is far more interested in defending his original executive order no matter how long it takes regardless of national security which is supposedly why he signed this order in the first place. He’s more interested in defending Trump than he is in defending America. After all, while he fights, there is no order keeping terrorists out of the country. His followers feel that Trump and America are one and the same.



Kwaisi France

An 80’s baby forged in the 90’s and unleashed upon the world in the 21st century, Kwaisi France is a Baltimore raised Brooklyn resident.

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