EDITOR’S NOTE: In his presser yesterday, President Trump confirmed that, instead of appealing the ruling discussed herein, he would “tailor” the executive order to pass Constitutional muster. That said, the issues discussed herein could well be relevant when the likely challenge comes.
Last week, the Ninth Circuit upheld the lower court’s temporary restraining order on the Trump administration’s travel ban. If you listen to some news outlets, you’ve probably heard this described as an activist decision by politically motivated judges. To those on the other side of the issue, this was a much needed check by the judiciary on a rogue executive. But for all the opinions being bandied about, it is important to understand what the Ninth Circuit’s decision actually did — and didn’t — do.
First and foremost, the Ninth Circuit did not render a decision on the merits of the travel ban. In other words, the ruling does not mean the travel ban is illegal. It only addressed whether a temporary restraining order will stay in place until there is a full trial on the merits.
While there was no actual decision on the merits, the Ninth Circuit did consider the likelihood that the government would success on the merits in an eventual trial and whether waiting for judicial resolution would cause irreparable injury. The Ninth Circuit answered both questions in the negative.
In regard to the first question, the judges identified due process concerns with the government’s position that might doom the ban. At its most simplistic, due process requires both notice and an opportunity to be heard. Without going into much detail, the judges stated that the order falls afoul of both basic tenets of due process. Second, in regard to irreparable harm, the judges found that there was no clear threat to the United States given the lack of any terrorist activity perpetrated by an alien from another country under the previous immigration rules. Given that the government did not show a significant likelihood of success on the merits or prove the requisite likelihood of irreparable harm, the Ninth Circuit upheld the TRO.
Going forward, it is becoming increasingly clear that President Trump’s tweet in the aftermath of the decision (“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”) is not actually going to be the administration’s next step. Government lawyers have not shown any intention of either appealing the ruling to the Supreme Court or asking for an en banc (larger panel) review by the Ninth Circuit. In a press conference Thursday, President Trump instead stated that he plans on issuing a new executive order on the subject.
We’ll probably have to wait a week to see what happens next. In the meantime, the legal challenges to the current travel ban are not over. No decision has been rendered on the legality of such a ban, but the Ninth Circuit gave a clear signal that the judiciary is not prepared to roll over and cede an inability to review executive orders, even in the national security arena. Depending on the echo chamber in which you reside, this is either the best or worst thing the courts can do.