Thursday, February 9, 2017

State of Washington v. Trump - A Post-Game Analysis of the Ninth Circuit's Opinion

State of Washington v. Trump - 

A Post-Game Analysis of the Ninth Circuit's Opinion

Michael J. Fleck, J.D.
Fleck & Meyers, P.A.
Huntley, Illinois


There is a lot of controversy surrounding President Trump's Executive Order  #13769, "Protecting the Nation From Foreign Terrorist Entry Into the United States".  This Order has sparked numerous court challenges, has garnered significant media coverage, and has lit up social media more than any Executive Order in the history of the Office of the President of the United States.  In the words of the the President, this is "Huge"!

Despite what one thinks of the Order as policy, as Constitutional, as effective, I wanted to take a look at the particular action in the Ninth Circuit Court of Appeals from the standpoint of breaking down what the specific appeal was about, what the legal issues were that needed to be examined, and why the Court ruled the way it did.  My analysis is limited to the Oral Arguments and the Court's published opinion.  No written briefs or amicus briefs were examined or considered.

Links to the Case

If you want to hear the oral arguments, here are the the links:

As the case was heard telephonically, the video link does not provide much more than the audio, other than providing a video image of who is speaking.

The Published Opinion constitutes the Court's Opinion and Order. 

So how did this case end up before the Court?

The Order

The Executive Order has the stated purpose of temporarily banning travel to the United States by non-citizens from seven specific countries, identified in the Order as having "[d]eteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States."  The seven countries are Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

The January 27, 2017 Order is to suspend the entry of aliens from these seven countries for a period of 90 days.

The Order suspends the Refugee Admissions Program for a period of 120 days.  Once the refugee program is re-instituted, those refugees whose claims for refugee status are based on being in a minority religion in their country of origin are given priority.

The Order fully suspends refugees from Syria indefinitely.

(It should be noted that the Order covered more ground, but these are the particular issues in this case)

The Order was implemented without notice and took effect immediately, creating, as the attorney for the States stated, "chaos".  Because of this, three days after the Order was executed, the State of Washington sued the President, the Secretary of Homeland Security, the Secretary of State and the United States.  Washington State alleged that that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. 

And Washington State was more blunt than that.  It claimed that the Order was simply a "Muslim Ban" as President Trump had boldly stated during the Presidential Campaign.

What relief Washington State is seeking and how Minnesota got involved

In its Complaint, Washington is asking the trial court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide.

To accomplish this, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of the sections of the Executive Order that instituted the temporary and indefinite bans as stated above.

Minnesota joined in, adding a Tenth Amendment claim for good measure.  The TRO Motion was amended to include this, and the United States opposed the TRO.  A hearing was held the following day.

The trial court granted the TRO, effectively stopping the temporary bans.  This TRO had a nationwide effect, not just for Washington and Minnesota.  The reasoning that the trial court gave was that the Court "preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that
the States were likely to be able to prove was unlawful." 

The trial court specifically put a halt to the 90 day and 120 bans.  And to the extent that the indefinite ban “purports to prioritize refugee claims of certain religious minorities”, this was halted as well.

To keep the case on a fast track, the trial court directed the parties to propose a briefing schedule for a hearing on the preliminary injunction, that would be the next step after a TRO.

For a primer on TROs and preliminary injunctions - click here.

Rather than move forward with the briefing and hearing on the preliminary injunction, the United States elected to file an appeal to have the Ninth Circuit review the TRO for error.

Some thoughts on the Oral Argument

Having listened to the oral argument that evening, I made some basic notes on my first impressions of the proceedings, and of the panel's questions. To be fair to this analysis, I wanted to share these thoughts that I had prior to the Opinion coming down, to see if these thoughts were touched on by the Court in its Opinion.  And whether my thoughts are right or wrong in the end (i.e. after the Opinion, I want to share the impressions hot off the argument).  In no particular order my thoughts were:
  • I was a bit surprised that the panel focused on the hypothetical of "What if the order said banning all Muslims?"  The panel brought it up to the US at the beginning of the proceedings and then again in rebuttal.  Mr. Flentje (who argued for the US) tried to get away from that each time stating that is not what the order says, but the panel seemed to really want to go there.  To be fair, another judge in response argument hammered Mr. Purcell (who argued for the States) on the fact that this apparently affects only 15% of all Muslims and there seems to be no doubt that radical terrorism is coming from these countries.
  • The States seemed to be arguing a lot of ill intent based on the President's campaign statements - that since he said that he wanted to ban Muslims, that this Executive Order is really about his true intentions, not that which is expressly stated in the Executive Order.
  • I found it interesting that the States opened with an emotional statement, “to throw this country back into chaos”.  I believe that this was intentional and in stark contrast to the US being rather matter of fact in its presentation that the Order says what it says and the President is tasked with the authority to make such an Order.  I believe that this was done for the fact that it is an emotionally charged case, and some critics very bluntly assert that Ninth Circuit will consider emotional appeals (rightly or wrongly) more than other courts in an effort to reach a decision that addresses this emotion, even if the cold adherence to the law would not necessarily support it.   
  • That being said, the Court did challenge both sides on the legal issues, especially standing.  The Court asked about why the States have a right to even bring the case.  My guess is that the issue of parens patriae was a non-winner for the States, but they seemed to want to find standing on the slimmest of reasons.  Basically, if the State can claim harm, such as a professor not being able to lecture, or be with family, then standing could be found.  My issue with this is that almost any State could make this argument for any Order that effects national security and travel bans of any nature.  So, this would open the door for any State to challenge any Order of the President.
  • The Court seemed interested in the argument that Presidential campaign statements are accountable to the winning candidate.  Despite the four corners of the Order, the States claim that this is really a Muslim Ban because of what the President said during the campaign.  Tey are trying to enjoin the President’s National Security Decision based on newspaper articles. Query - Is this political puffery or policy that can be used against the President for future Executive action?  If the latter, this can have a chilling effect on the campaign trail.
  • I thought that Mr. Flentje could have done a better job in my opinion of whether the Court had any right to review what is in the purview of Congress and the President.  His rebuttal did a better job of standing on this as it was more of a forceful argument.  Having been before appellate panels, it is not easy to be confident in making arguments with three judges challenging you along the way (i.e. it's not easy to tell a learned judge that they are wrong).  I think the US made a more confident argument in the end on this issue. 
  • I note that this argument is whether the TRO should remain in effect.  The press and the general public will likely not see or care about the subtlety of this and simply view the decision as whether the order is Constitutional or not, and that is not what is before the Court at this time. In order to get to that, the Court has to look at issues such as Jurisdiction, Standing, whether the Executive Order can be reinterpreted to exclude those who were already lawfully here, and as noted above, whether ill intent can be gleaned from political campaign statements by the President and by his staff. 
  • If I were simply judging the attorneys on their presentation to the Court, as if they were law students, I’d say Mr. Purcell for the States did a better job, but Mr. Flentje had a strong rebuttal. I think the judges were equally tough on both of them in various aspects.

What is Per Curiam?

The Opinion was issued per curiam.  Essentially, it means it was a 3-0 decision, with no dissent from any judge, and no concurring opinion (i.e. reaching the same result but for different reasons).  This does not bode well for the US if it is to try and have the US Supreme Court hear the case.  With a currently unfulfilled Court of 8 Justices, a 4-4 tie would simply uphold this 3-0 decision.  

There is a possibility that the US could ask for the full panel of the Ninth Circuit to rehear the case (known as en banc), but strategically, the US is not in a favorable Court to have any luck with this, even if they agreed to hear it as a full panel.

So what did the Appellate Court Decide?

Now onto the Opinion.  The Court analyzed several factors in reaching its conclusion.
  • Jurisdiction - Does the Court have the right to hear the case and rule on it?
  • Standing - Do the States have a right to bring the case at all (do they have a dog in the hunt?)
  • Reviewability of the Executive Order - Does the Judicial Branch have a right to review the Executive Order at all?
  • Legal Standard - Who has the burden and what do they need to show to succeed?
    • Likelihood of Success
      • Due Process
      • Religious Discrimination
    • Balance of Hardships Test

Is there Jurisdiction to hear the Appeal?

The State did challenge whether the appeal should even be heard.  As noted above, the US could have simply licked its wounds having lost the TRO and regrouped for a more complex and detailed hearing on the preliminary injunction.  But instead, it took its chances with the appellate court.  If the States win on this issue, then the Court would not even bother to rule, and send it back to the trial court for the hearing.

But the Court addressed this issue by finding jurisdiciton.  The State, rightly, noted that TROs are normally not appealable.  But as with every aspect of law, there are exceptions, and here there is one that applies.  If the TRO walks and talks more like a preliminary injunction (which usually has a more detailed legal challenge), then it will be appealable.

Do the States have a right to bring this case at all - Standing?

 The US argued that the States are not proper plaintiffs here, and this was discussed at length by both sides in oral argument.  The court concluded that at this preliminary stage of the proceedings, that the States have shown standing.  Specifically, the States could assert standing in two ways:  (1)  Parens Patriae; or (2) whether the States themselves have a personal stake in the outcome of the controversy.

Parens Patriae quite literally means "parent of the country".  If this was the basis for standing, then the State would be essentially representing the individuals who suffered the actual harm and bring the suit in their stead.  For example, if a minor suffered a personal injury, they parents or guardians could bring the suit on the minor's behalf, even though the parents themselves were not the truly injured party.  Personally, I found this argument quite interesting and hoped that the Court would address it.  But as we shall see, the Court found standing the old fashioned way (via direct injury to the State itself), so it chose not to discuss it at all.  Note:  sometimes an opinion will discuss an issue like this first, explain why or why not it succeeds, and then move on to the next issue.  But if a court can avoid having to rule on a point, it can address the first, which dispenses with the second as essentially moot. 

So why did the Court find standing via direct injury?  In short, the States argued that the Executive Order causes a concrete and particularized injury to their public universities, which is a branch of State government.  The Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. 

This sounds a bit like Parens Patriae, but it isn't.  The harm is to the universities, not to the professors or their families.  So Standing is met in this manner.  However, to cloud the issue, in its footnote 4, the Court stated "the States are asserting the rights of their students and professors" which seems to sound exactly like Parens Patriae.  It then goes on in footnote 5 to say it is not reviewing this as Parens Patriae.

Policy Analysis on this issue:  In my opinion, this is potentially dangerous territory in terms of Executive or even Legislative authority.  Practically every Executive action or Congressional Act results in some harm to the functions of a State, whether it be lost tax revenue, having to reschedule an event, costing revenue, etc.  Indeed, this same standing argument could have been made after September 11 when all flights were grounded for days.  Imagine if a State challenged that Order at that time because a professor could not get back to speak at a lecture.  Would every Executive action involving National Security come to a grinding halt because a judicial challenge can be made to it? 

Nevertheless, standing was found, so we move on to the next issue.

Can (Should) the Court Review this type of Executive Order?

The US took the position that this type of Executive Order is unreviewable by the judicial branch, as it is in the purview of the authority of the Chief Executive.  It appears that the Court felt that this argument went way too far and that it is unsupported by a substantial body of case law.  The Court noted that the US didn't say that the courts owe substantial deference to the Executive Branch in this regard, i.e. there is a really high hurdle to surpass.  The US said there is no hurdle at all, but perhaps a wall if you will.

The Court listed a body of case law that basically told the US why this contention was untenable, even in issues of National Security.  The Court devoted almost 5 1/2 pages of its 29 page opinion to this issue, and in rather convincing fashion.  If this case indeed goes the Supreme Court, I do think that US will have a hard time taking this firm position on reviewability.

On to the Legal Standard

Now that have concluded that the Court has Jurisdiction, that the States have Standing to bring the Case, and that the Court has the authority to review such an Executive Order involving National Security, we get to the substance of the Appeal - should the Court stay the TRO?

The Court stated that its decision is guided by four questions: 

(1) whether the stay applicant (i.e. the US) has made a strong showing that he 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 the other parties interested in the proceeding; and 
(4) where the public interest lies.

Looking at each of these, the Court in its opinion gave a spoiler alert on page 19 - "We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay."  So at this point, we know that the US will not succeed.  But as to why:

Due Process Not Met.  The Court stated that the Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.  

Policy Analysis on this issue:  In my opinion, this is the inherent part of the Order.  My reading of the Executive Order indicates that the purpose is that the Executive Branch finds that there is a clear and present danger, and that this is a temporary (90-120) day ban on travel (conceding that the Syrian refugee portion is indefinite).  The language of the Order suggests that the whole point of the Order is to take a step back and put in procedures (i.e. Due Process) that works both to vet those coming in (colloquially to keep the bad guys out) and to allow those who can and should come in have the right process.  Whether one agrees with this, or even buys it as the legitimate purpose, that is the stated purpose of the Order.  The Executive Branch is saying that things have devolved so badly in these seven countries that current procedures are ineffective to ensure the safety of our land, and during this period, new and better procedures are to be implemented.

Also note that the US tried in vain to salvage its argument to the extent that it modified its Order several days later to exclude the ban from lawful permanent residents.  The Court was unpersuaded by this, essentially stating that the Court "cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely."  This would seem to be legally accurate as this is the legal version of "what I meant to say was . . ."

Religious Discrimination.  From the Opinion:  "The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims."

The Court is at this point in the Opinion teeing up the issue of whether President Trump's campaign rhetoric can be considered in looking beyond the language of the Executive Order - that may not on its face be a Muslim Ban, but underneath it is.

But alas, and perhaps rightfully so at this point in the litigation, the Court did not address this issue in the Opinion.  Rather it stated:

"The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the
merits of this appeal have been fully briefed."

As it did in the standing issue, having already shown that the US failed to meet its burden on the Due Process issue, it chose to not go there.  

Analysis:  The Court spent some time in oral argument on this issue.  It is indeed a highly charged hot potato.  As noted earlier, this is an interesting and potentially dangerous issue to explore, in my opinion.  The question of when does campaign puffery become formal Presidential policy is at stake here.  Regardless of what may think of the President and his words on the campaign trail and how that translates to formal decisions can be an issue on other matters in the future.

The free speech of politics can be seriously quelled if the Court eventually binds the Presidents campaign rhetoric to the meaning of any action beyond the four corners of a document.  What a candidate knows while campaiging versus what a President actually knows after taking the Oath of Office may indeed change one's view of what can, cannot, should, should not, and must, must not be done with respect to many issues.

Imagine, for example. that a campaign issue regarding unions, or social security or healthcare, which may be polarizing, come back to haunt a President post-election, who is trying to issue regulations or orders on that topic.  Would the Courts be able to ignore that language of those official documents and bind the President to something said in the heat of a campaign speech?  What will that do to the First Amendment on the campaign trail?  The potential implications are indeed chilling, as this can be problematic for any candidate of any stripe.

Balance of Hardships - the Problem of Irrreperable Injury

Finally, the Court looked at the issue of who would be harmed more if this TRO is stayed.

The Court bluntly stated that the US has not shown that if the stay is not implemented on the TRO, that it would suffer irreparable harm.  The main contention of the US, that "the Government’s interest in combating terrorism is an urgent objective of the highest order" was not backed up with any specifics.  In other words, the US simply kept stating that this Order is to fight terrorism, but didn't put any meat on the bones of that obvious and important goal.

Indeed, in oral argument, the Court was inviting the US to explain this further ("our own repeated invitations to explain the urgent need"), the US offered no evidence to support this contention.  Rather, the US fell back on the contention that this is unreviewable, and clearly, the Court rejected that for 5 1/2 pages.  The Court was equally unimpressed by the contention that this is an erosion of the separation of powers (by having its Order concerning National Security reviewable by the Judiciary).  While this case may indeed have that effect in the end, it apparently is not cognizable as irreparable harm.

The last aspect of the case - the public interest - the Court gave brief analysis to, stating that it was a push in that the public interest favored both sides as the case has garnered massive attention, even at this early stage.

But it is important to recall that this case is indeed in its early stages, and although this is a significant win for the States (and perhaps a more significant loss for the Executive Branch), the case is far from over and this is but a small but significant aspect of this entire litigation process.

We shall see how this case will progress.  It is likely that the US will seek review in the Supreme Court, even though it is likely that this will not be successful.  But the US has chosen to proceed down this path and essentially needs to finish the route it chose.  Had it simply continued in the trial court, this ruling would not be there to establish a huge hole for the US to crawl out.  But it's much easier to review this after the Opinion is published, than to make these decisions in the heat of litigation.

- Michael J. Fleck is an attorney in Huntley, Illinois with Fleck & Meyers, P.A.  He received his J.D. with High Honors from IIT - Chicago Kent College of Law and is a member of the Order of the Coif.  He is licensed to practice in the Illinois Courts, the Federal District Court for the Northern District of Illinois (Trial Bar), the Seventh Circuit Court of Appeals and the U.S. Supreme Court.  The opinions stated here are his own and do not reflect that of Fleck & Meyers, P.A., or of any other entity with which he is affiliated.


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