In its 25-page order, the three-judge United States Court of Appeals Ninth Circuit has refused to stay the Temporary Restraint Order (TRO) that Judge James L Robart had issued against President Donald Trump’s Executive Order of January 27.
Lawyers for the Trump Administration had argued that the President’s order was “unreviewable” because it involved sensitive issues of immigration and national security, and that in these matters the courts must show deference to the political wing of the government. The judges rejected the “unreviewable” argument, while conceding that courts would need to defer to the executive in matters of national security.
But they cited earlier Supreme Court judgments to show that even in sensitive matters like immigration and national security, the courts were not either meek and passive bystanders, nor are they prevented from raising questions regarding constitutional validity.
The judges note: “Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
The more important ground on which the Appeals Court has rejected Trump Administration’s arguments is with regard to the constitutional requirement of “due process of law”.
The more important ground on which the Appeals Court has rejected Trump Administration’s arguments is with regard to the constitutional requirement of “due process of law”. The Appeals Court takes note of the fact that the executive does not even refer to the issue of “due process”, and on the contrary it contends “that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause”.
The judges stated in unambiguous language that “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not confined to citizens”. They even say that “due process rights” of even those staying in the country “unlawfully” .
And in a heartening assertion of legal rights of people against the state, the judges say, “… we decline to limit the scope of the TRO to lawful permanent residents,” and the modification of the Government’s order to include “previously admitted aliens”.
The Appeals Court judges raise the all-important question of religious discrimination inherent in the Trump Executive Order. Citing an earlier Supreme Court judgment which says endorsement of a religion “sends the ancillary image …to non adherents ‘that they are outsiders, not full members of the political community”, they accept the arguments of the lawyers for the states of Washington and Minnesota “that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavour Muslims.”
The judges make the simple point that the Federal Government failed to provide any evidence to back the President’s Executive Order: “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. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its position at all. We disagree, as explained above.”
The judges refer to the issue of “public interest”, and they offer the considered view: “Aspects of public interest favour both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has interest in the free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterise public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
Author: Parsa Venkateshwar Rao Jr