In a per curiam decision (the "Decision") this evening, February 9, 2017, a three-judge panel of the US Court of Appeals for the Ninth Circuit (the "Court") upheld the temporary restraining order ("TRO") of the US District Court for the Western District of Washington (the "District Court") barring executive action to restrict travel into the United States by nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) and temporarily suspend the admission of refugees. The travel restrictions and refugee admission moratorium stem from Executive Order 13769, "Protecting the Nation From Foreign Terrorist Entry Into the United States" (the "Executive Order" or the "Order"). The federal government's (the "Government's") emergency motion for a stay of the TRO pending appeal is accordingly denied. The TRO will remain in place until further briefing and oral arguments can be heard by the Ninth Circuit, pending a possible Supreme Court appeal.
Travel by nationals of the seven countries and refugee admissions may continue without interruption pending further judicial action. The Executive Order provisions which will remain subject to the District Court's TRO are:
- Suspension of the admission of nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, which is renewable under certain circumstances on the basis of a Presidential proclamation that would prohibit their continued admission (i.e., on the ground that the countries are failing to provide information sought by the Government about their nationals);
- Suspension of the US Refugee Admissions Program for 120 days; and
- Indefinite suspension of refugees from Syria.1
In addition, the Department of State's previously announced revocation of visas for nationals of the seven designated countries has been reversed and is not expected to be reinstated at this time.
The key points of the Decision are:
- The Court construes the TRO issued by the District Court as a preliminary injunction for purposes of the appeal.
- The Court finds that the States of Washington and Minnesota have adequately alleged standing for present purposes.
- The Court rejects the Government's assertion that the Executive Order is unreviewable because it concerns matters committed solely to the Executive's prerogative.
- The Court concludes that the Government "has not shown that it is likely to succeed on appeal on its arguments about ... the States' Due Process Clause claim."
- The Court also "note[s] the serious nature of the allegations the States have raised with respect to their religious discrimination claims."
- "The Government has not shown that a stay is necessary to avoid irreparable injury." The government failed to produce any evidence that the Order was necessary for national security.
Based upon reports this evening, the Department of Justice appears likely to apply to the Supreme Court for a stay of the TRO.2 An application for a stay of the TRO would initially be presented to Justice Anthony M. Kennedy, who in turn would likely refer the request to the entire Supreme Court. To stay the District Court's order, five of the current eight Supreme Court justices would have to vote in favor.
Appellate briefing will now continue before the Ninth Circuit, with the last brief to be filed on March 29, 2017, and oral argument and a decision sometime thereafter. As the Ninth Circuit has undertaken to hear the appeal of the District Court's order as an appealable preliminary injunction, it is currently unclear whether the District Court will continue with its originally scheduled briefing on issuance of a preliminary injunction, which was to be concluded on February 17, 2017.
1. Our Alert from February 7, 2017, linked here, provides precise guidance on when nationals of these countries are subject to the Executive Order in its original form.
2. Although the Government could ask for relief from the en banc Ninth Circuit, we believe it is less likely to pursue this option.
Originally published 9 February 2017
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