Federal Court Of Appeals Upholds Block To Immigration Ban, Citing No Immediate Need Or Imminent Threats, No Due Process, And Causing Harm To States; Second Judge Notes Violation Of Non-Discrimination Law
The Ninth Circuit of the United States Court Of Appeals unanimously upheld a Federal District Court decision to block Trump’s Immigration Ban executive order. The ruling included three judges and all voted to uphold this ban block.
The court noted the Federal Government has not demonstrated an immediate need for this ban by providing specific threats or other evidence that justifies the ban:
[The Government has not] shown that failure to enter a stay would cause irreparable injury…the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States
The court notes that the “States have alleged harms to their proprietary interests traceable to the Executive Order”, for example in the case of state universities:
The necessary connection can be drawn in at most two logical steps: (1) 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.
The court noted that this executive order does not seem to comply with due process, which applies to all persons (including non-citizens in the United States):
The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered…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
The court also notes how the Government argued that Executive Orders are not subject to any sort of review or checks and balances:
The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections…There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy
A second Federal judge upheld the travel ban block on October 18, 2017, noting that “plaintiffs challenging the policy were likely to succeed in proving that it violated the non-discrimination law ‘to the extent that it bars entry by immigrants on the basis of nationality.'”
“STATE OF WASHINGTON; STATE OF MINNESOTA V. DONALD J TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY; REX TILLERSON; JOHN KELLY.” (2017): 1-29. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Web.
Savage, Charlie. “6 Highlights From the Ruling on Trump’s Immigration Order.” The New York Times. The New York Times, 09 Feb. 2017. Web. 13 Feb. 2017.