The Ninth Circuit has delivered its decision in State of Washington v. Trump, rejecting the Trump Administration’s appeal from the temporary restraining order preventing the Administration from enforcing President Trump’s executive order on refugees. The decision by a 3-judge panel (appointees of Presidents Carter, George W. Bush, and Obama) is unanimous and delivered “Per Curiam”, meaning no one of the three judges signed the opinion (a practice that tends to be more common when a court is writing in haste). Let’s walk through what the court did, and why. Some of this is inside baseball for lawyers, but even the procedural decisions matter to citizens who care about Trump’s orders. The takeaway is that the court didn’t actually resolve a lot of the hotly contested issues here, and cooler heads in the Administration should probably try revising the executive order and presenting more thorough evidence in its favor before taking the case up to the Supreme Court (a delay that may allow the Court to get up to nine Justices in the interim). At no point did the court decide that Trump violated the Constitution – but it telegraphed its view that there was enough to such claims to leave the lower court’s order in place, barring enforcement of the executive order, until those claims could be resolved in full.


First, the court ruled that the government could appeal this order immediately, a victory for the Administration. Temporary restraining orders are normally just that – temporary – so usually they can’t be appealed until the lower court holds a full hearing to enter an injunction. Sometimes, in an emergency, they’re entered without even hearing from one side. But Judge Robart heard arguments from both sides and entered an indefinite injunction, so the appeals court felt that his order was ready to be appealed even though the parties hadn’t offered much evidence yet – “We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.”


Second, the court concluded that the States of Washington and Minnesota had legal standing under Article III of the Constitution to bring a court case to challenge the order. Federal courts require that a party bringing a lawsuit have some personal stake in it; in general, you cannot literally make a federal case out of something that doesn’t affect you directly. The court wisely avoided ruling on the states’ flimsy claim to “parens patriae” standing to represent every citizen of their state and then extend that to non-resident aliens, a theory foreclosed by Supreme Court precedent dating back to 1923. It focused more narrowly on the states’ claim to represent state universities that were affected when current or planned faculty or students from the seven countries covered by the 90-day suspension in Section 3(c) of the order. That’s a reasonable enough ruling, as far as it goes, but it would normally not give them standing to challenge other aspects of the executive order in which they have no concrete interest, such as the 120-day suspension of the refugee program (Section 5(a)), the indefinite ban on Syrian refugees (Section 5(c)), or the provisions of the order requiring future consideration of religious-minority status for refugees claiming religious persecution (Sections 5(b) and 5(e)). Given that the appellate court upheld the injunction against all of those provisions, it had a duty under the Supreme Court’s decision in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), to decide whether each plaintiff has standing to challenge each government action. It did not.

The Ninth Circuit panel also concluded, without citing any support whatsoever, that the states had standing to challenge “religious discrimination” under the Establishment Clause of the First Amendment. More on this below, but it is worth noting that the court did not actually end up concluding that the Trump Administration had engaged in religious discrimination; it just found that it didn’t have enough time and evidence to justify reversing the district judge on that issue. A more considered appeal on this question would probably involve a more serious attempt to grapple with the extreme novelty of the argument that the Establishment Clause limits the scope of federal immigration law.


Third, the court rejected an unreasonably broad argument made by the Administration: that Executive Branch determinations in the immigration area are beyond the review of courts. This was not a defensible argument, and the fact that it was advanced at all seems to be a sign of the chaotic lawyering of this case, brought while the Administration still had neither an Attorney General nor a Solicitor General appointed by President Trump. Let that be a lesson about picking high-stakes court battles without bothering to get your legal team in place first.



However, maybe the most important dog that didn’t bark here is presidential power. The court’s opinion did not conclude, or even suggest, that Trump lacked the power as president to issue the order. It didn’t resolve that issue in Trump’s favor; it was just assumed it, since it ruled against him on other ground.


Fourth, the court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visaholders” who were barred from the country, again ignoring the fact that the Administration has stopped enforcing the order against lawful permanent residents and the fact that the states were also looking to enforce the injunction on behalf of refugees and others who had yet to be granted visas. The Supreme Court, in its 2015 decision in Kerry v. Din, left open the question of whether there is any due process right for foreign nationals to challenge the denial of a visa; Justices Scalia, Thomas and Chief Justice Roberts thought not, and in that case, Justices Kennedy and Alito didn’t take a position on the issue because they found that adequate due process had been provided in that case. But the Ninth Circuit never addressed why people without an existing visa might have due process rights.

The court did, however, rely on the Court’s 2001 decision in Zadvydas v. Davis, a 5-4 opinion written by Justice Breyer, which held that people charged with being illegally in the U.S. have a right to due process to challenge that before being deported. But nothing in Zadvydas would extend rights to people denied entry, and the Ninth Circuit simply concluded that if its order was too broad, it was up to the White House to write a narrower one – an opportunity that I would seize upon swiftly, if I was advising President Trump:

Even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order….The political branches are far better equipped to make appropriate distinctions.



That said, it’s notable that when portions of Obamacare were found to be unlawful, the Supreme Court bent over backwards to let the remaining portions stand. Trump gets no such treatment.

Fifth, and most importantly, the court upheld the TRO against Trump’s immigration order on grounds of religious discrimination against Muslims, even though the order is neutral on its face, without really deciding the issue:

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 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.


Notably, not one of the cases the court cited involved a federal court in evaluating “evidence of purpose” of religious discrimination by a co-equal branch of the federal government, rather than a state or local government – much less evidence derived from statements on the campaign trail. If Trump’s “Muslim ban” statements in December 2015 have permanently reduced powers that the Executive Branch would otherwise have had to exclude aliens from the country, the court should say that openly. Moreover, the court made no effort to evaluate the Administration’s assessments that its orders were tailored to a terrorist threat (whatever you may think of those assessments), and it nowhere discussed whether the federal government may legitimately weigh the fact of being a religious minority (in the case of the countries discussed, Christians) is something the government may consider in determining whether a person or group is subject to religious persecution.

Sixth and last, the court rejected the government’s argument that a refugee ban was urgent, given the lack of any evidence submitted thus far in the case to support urgency. That’s a bit of a Catch-22, since any evidence of imminent national security threats is likely classified and not properly offered to judges and litigants without security clearance, but the Administration should reconsider whether it has evidence of a more broad-based nature to support the breadth of its travel bans. Much of the opinion’s coda deals with how early it is in the case, and how little opportunity any judge has had to give real review to any evidence.

If the Trump Administration should learn one lesson from this debacle, it’s that courts won’t accept bluster in place of evidence from an administration with which the judges are disinclined to sympathize. The court reached some bad rulings, but as the saying goes, hard cases make bad law. The Administration should try to avoid letting its cases be so hard when they don’t need to be. But it should also be prepared for the fact that the courts are not likely to give it a fair shake.