On February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Federal Government’s emergency motion for a stay of the district court order temporarily pausing enforcement of the travel restrictions imposed by Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” As we reported in our January 30 and February 6 alerts, this Executive Order (1) blocks the entry to the U.S. of aliens from seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days, (2) suspends the United States Refugee Admissions Program for 120 days, and (3) halts indefinitely the entry of all Syrian refugees. Given the Ninth Circuit’s decision, enforcement of the Order is suspended while litigation continues.
Yesterday’s ruling was unconventional in that oral arguments were held over the phone only two days before. These arguments attracted an exceptionally large live audience via cable news networks and websites like YouTube. The YouTube livestream alone received over 135,000 listeners as Judges Richard R. Clifton, William Canby, and Michelle T. Friedland heard oral arguments by August Flentje, Special Counsel to the U.S. Attorney General, and Noah Purcell, Washington State’s Solicitor General.
A key component of yesterday’s ruling is the court’s disagreement with the Trump administration over the reach of the Fifth Amendment’s Due Process Clause, which the court determined applies to “certain aliens attempting to re-enter the United States.” The ruling also expresses concern over “the government’s shifting interpretations of the executive order” and the potential for more changes in how the order is enforced. Moreover, the ruling notably calls into question the government’s argument of the urgent necessity of the ban. Also contrary to the administration’s position, the court held firm in stating that it is within its power to review presidential actions like this, even in the case of national security concerns.
The countrywide temporary restraining order issued by Judge James Robart of the United States District Court for the Western District of Washington remains in effect without an expiration date, and individuals targeted by the order remain free to travel until further notice. However, if the travel ban is reinstituted while individuals subject to the Executive Order are outside of the country, they may not be able to return. The case of Washington v. Trump remains pending in the Seattle court. The Federal Government could now ask for emergency intervention from a larger Ninth Circuit panel or the U.S. Supreme Court, but a full court decision on the legality of the Executive Order will likely take many months and a number of appeals.
Nicholas Sparks, in our International Trade and Investment Group, contributed to this post.