The Ban and the Rule of Law

The Ban and the Rule of Law

Trump’s immigration ban and the 9th Circuit’s emergency injunction has sparked much debate regarding the ethical aspects of the executive order, but little to no debate about the legal precedents and ramifications involved.

On Friday, Feb.3, a federal district court in Seattle put a temporary injunction on Trump’s controversial immigration ban. The Trump administration filed an emergency appeal of the injunction, putting the case before a three-judge panel for the 9th Circuit Court of Appeals. The Court considered the government’s claim that a stay on the injunction was necessary and appropriate, as well as Washington State’s claim that the ban is harmful and not within the president’s authority.      

Federal courts use a four-part test in order to determine whether an emergency injunction is appropriate. According to the amicus brief mentioned above, the court asks “(1) whether the applicant ‘is likely to succeed on the merits;’ (2) ‘whether the applicant will be irreparably injured absent a stay;’ (3) whether issuance of the stay will ‘substantially injure’ other interested parties; and (4) ‘where the public interest lies.’” The counsel for the State of Washington had to demonstrate that they are likely to succeed on the merits of their case and that they have been harmed by the order. The U.S. government was required to prove that a denial of a stay on the injunction would cause the U.S. irreparable damage, and that they have the public interest in mind.

In a brief, counsel for the Trump administration argued that Trump’s order relied “on his express statutory authority to suspend entry of any class of aliens to protect the national interest.” The counsel proceeded to outline that, not only was the president’s power with respect to any class of aliens unlimited, it was essentially above judicial scrutiny. This argument was meant to satisfy all four parts of the aforementioned test. The counsel argued that the president has both the authority to suspend “any class of aliens” and to determine where the “national interest” lies. They further asserted that the President possesses “unreviewable authority to suspend the admission of any class of aliens.”

The brief’s argument that the executive order was necessary is essentially “because we said so.” This argument was strongly challenged by an amicus brief from a council of Constitutional Scholars, which stated that “the President’s authority to restrict admission to the United States is not unfettered—it is limited by the Constitution.”

The State of Washington’s argument was twofold. According to the Washington Post, “The central exhibit for this argument is his campaign statements about a ‘Muslim ban.’” Washington argued that Trump’s past statements about a Muslim ban and the exemption for Christian asylum seekers constitutes a violation of the Establishment Clause of the Constitution. The State also objected to the ban on Due Process grounds, which are derived from Article V of the Constitution, which states “no person shall… be deprived of life, liberty, or property, without due process of law.” The state argued that the implementation of the ban violated the due process rights of lawful permanent residents and visa holders.

The 9th Circuit Court of Appeals’ decision affirmed Washington’s arguments and determined that it had been harmed, and it also denied the government’s claim that the President’s action was above judicial scrutiny. The court found that Washington had standing to sue and that their case was likely to succeed on merits. The Court wrote, “The Government has not shown that the Executive Order provides what due process requires,” demonstrating that the case was likely to succeed on due process grounds. The Court also ruled that “the States’ claims raise serious allegations and present significant constitutional questions” that warranted an injunction. Underpinning the 9th Circuit’s arguments was a thundering rejection of the government’s assertion that the order was above judicial scrutiny. The judges devoted more than five pages of their decision to denying that assertion, stating, “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

The Trump administration may now appeal to the Supreme Court, or the case may be heard en banc by the full 9th Circuit Court of Appeals. The 9th Circuit has already declared its own desire to hear the case en banc. Nonetheless, it is certain that the temporary restraining order on the injunction will be fully reviewed, regardless of Trump’s claim that he is above the rule of law.

 

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