In a victory for the state of Hawaii, Dr. Ismail Elshikh, and the rule of law, today the 9^th Circuit issued its opinion in Hawaii v. Trump, the case challenging President Trump’s entry ban (and some other things too, as I’ll talk about in a second). The 9^th circuit upheld in significant part the district court’s preliminary injunction against the President’s executive order.   In International Refugee Assistance Project v. Trump, the 4^th Circuit had upheld (again in large part) another preliminary injunction against a key provision of the order, the entry ban.

But that’s about where the similarities between the 9^th Circuit and 4^th Circuit opinions end. The 9^th Circuit decided the case on statutory grounds, whereas the 4^th Circuit relied on constitutional grounds. The 9^th Circuit upheld an injunction against several parts of the order, including the entry ban, whereas the 4^th Circuit upheld an injunction solely against the entry ban. The 9^th Circuit issued an opinion that is unanimous and unsigned at that, whereas the 4^th Circuit issued several different opinions.

Some of the most important points about the 9^th Circuit opinion include that the opinion modifies the district court injunction, thus allowing the government to begin its “internal review” procedures, and what that (and the other aspects of the 9^th Circuit opinion) suggest about the government’s petitions for certiorari and stay requests.

So with that introduction, a few thoughts on the opinion. I’m leaving the portion of the 9^th Circuit’s opinion that concludes the President’s order violates section 1152 of the INA for Ian Samuel. Ian had made that argument before, and as I note on Twitter, a smug and vindicated Ian Samuel is fairly entertaining.  I’ll point out where the 9^th Circuit has agreed with some of what’s been written about this case by Marty Lederman, Amir Ali, and others.  A tip of the hat to all of them for their thoughtful writing!

Standing. Before proceeding to the merits, the 9^th Circuit had to first ensure that the plaintiffs challenging the ban had standing to do so. Two things struck out to me in reading the portions of the opinion dealing with standing.

First, the opinion concludes the state of Hawaii has standing to challenge the order because of its proprietary interests and sovereign interests. The “proprietary” interests are harms to the state’s universities. This theory of states’ “proprietary” interests is also now part of the emoluments litigation, because Maryland and D.C. have filed suit against the President challenging his violations of the Emoluments Clauses. The “sovereign” interests harmed by the order were the state’s ability to settle refugees in compliance with the states’ laws. When a state has standing because a federal law purportedly impedes the states’ efforts to administer its own laws is an interesting question; Kevin Walsh wrote an article about the issue after Virginia passed a law that was designed to allow Virginia to challenge the constitutionality of the Affordable Care Act. Unlike the Virginia laws Walsh wrote about, however, the laws that gave Hawaii standing predated the order. (There are some other differences too, but just wanted to flag that one.)

Second, the opinion rejects the government’s argument that the Plaintiffs’ claims and injuries were speculative because the order contains a provision allowing its requirements to be waived through case-by-case determinations. As the opinion notes “the waiver is discretionary. Indeed, no one can count on it.” Putting aside the general question of when waivers make an injury speculative, it is hard to see why that would be the case here. If the government really believes that nationals of the countries subject to the order are a threat to national security, as it has had to represent throughout this litigation, one would expect the entry ban to be rigorously enforced. Nothing in the administration’s briefing or statements suggest the ban would be enforced (if it did not become moot in 2 days, which it may very well) as some kind of loosey-goosey system of lax case-by-case waivers. As the 9^th Circuit noted, the President stated the “TRAVEL BAN” was needed for certain “DANGEROUS” countries. (That statement was part of the President’s ill-timed twitter rant after the London attacks, which I wrote about, and Helen Murillo and I wrote about, when it occurred.)

Statutory Grounds.  As I mentioned, the 9^th Circuit opted to resolve the case on statutory grounds rather than constitutional ones, invoking the doctrine of constitutional avoidance. The 4^th Circuit had explained its decision to resolve the case on constitutional grounds rather than statutory ones by saying that the statutory claims could not resolve all of the plaintiffs’ arguments. I’m not sure that’s right—the 4^th Circuit’s reasoning was that section 1152 only limits the President’s authority with respect to immigrant visas. Even if that’s right, however, the argument that the order violates section 1182 would not limit the scope of the injunction to immigrant visas. And that’s the ground on which the 9th Circuit decided this case.

The statutory argument goes something like this: Section 1182(f) allows the President to “suspend the entry of all aliens or any class of aliens” when “the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States.” But in the order establishing the entry ban, the President did not make a “find[ing]” that the “class of aliens” whose entry he suspended “would be detrimental to the interests of the United States.” The hand-waving in the order (including the letter submitted by the DHS Secretary and Attorney General) does not justify the whole-sale suspension of entry by nationals of the six majority-Muslim countries identified by the order.

If that argument sounds familiar, it should. After the oral argument in the 4^th Circuit, when Judge Keenan identified this deficiency in the order, Marty Lederman explained on this site how the entry ban did not fulfill the conditions specified by section 1182(f). As Marty wrote, the order fails to identify what class of persons entering the United States would be detrimental; it fails to make a finding that the class of persons subject to the order would be detrimental to the interests of the United States if allowed to enter; and it fails to rely on evidence that is sufficiently related to the scope of the entry ban to justify it. (Full credit to Marty: He had mentioned this argument before the 4^th Circuit argument.)

As the 9^th Circuit explained:

There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests.

The 9^th Circuit further explained why the “national security” concerns cited by the order don’t work either. In brief: The order cites the conditions in the six countries subject to the order as a reason why nationals of those countries may not enter the United States. But the order makes no finding that nationality alone makes entry of persons a security risk; nationals who spent their entire lives in Switzerland would be subject to the ban, but nationals of other countries who had spent their lives in the countries subject to the ban experiencing the conditions in the countries (which is what the order cites as troubling) would not be. The order indicates that persons abroad have been convicted of terrorism-related crimes in the United States, but doesn’t identify the number of national from the six designated countries who have been convicted.

The court also relied on the section 1182(f) argument to uphold the preliminary injunction against Section 6(a) of the order, which suspends for 120 days travel of refugees into the United States under the refugee program. The court wrote “Assuming the President also relied on 1182(f) to suspend [the refugee program] for 120 days … EO2 does not reveal any threat or harm to warrant suspension … and does not support the conclusion that the entry of refugees in the interim time period would be harmful.” Nor, the court explained, did “it provide any indication that present vetting and screening procedures are inadequate,” relying on evidence about the actions two Iraqi nationals planned overseas, and the action of one Somali national who entered the United States at three and engaged in the wrongful conduct at age 19.

The court also relied on section 1182(f) argument to uphold the preliminary injunction against Section 6(b) of the order, which reduces the cap on the number of refugees to no more than 50,000 in the 2017 fiscal year. Again the court explained the President had not offered any finding to explain why more than 50,000 refugees would be detrimental to the interests of the United States.

On the provisions of the order related to refugees, the court also relied on section 1157, which authorizes the President to set “the number of refugees who may be admitted … in any fiscal year” “as the Presidents determines …. And after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.” The court explained that the order failed to satisfy the preconditions for exercises of the President’s authority under section 1157 as well. The President had not completed the requisite consultation, which requires “discussions in person by designated Cabinet-level representations … with members of the Committees on the Judiciary of the Senate and of the House of Representatives.” (That definition is in the statute.) The government had argued section 1182 allows the president to unilaterally lower the number of refugees admitted into the United States.

Modified Injunction. Perhaps the most significant part of the 9^th Circuit opinion was how it modified the district court’s injunction. Like the 4^th Circuit, the 9^th Circuit modified the injunction so that it did not run against the President.

But the 9^th Circuit also had to address another question about the scope of the district court’s injunction. The district court in Hawaii had enjoined section 2(a) of the order, which directs the government to begin an “internal review procedure” to review its visa and entry procedures. The 9^th Circuit modified the injunction, so that the government is no longer enjoined from effectuating section 2(a)’s internal review procedure. Amir Ali predicted and recommended this approach on this site, as did Steve Vladeck. I’ll get to why that’s significant in a second.

Other Thoughts That Didn’t Belong Anywhere Else In The Post. There are two other points I wanted to flag about the 9^th Circuit opinion. While the 9^th Circuit opinion was written differently than the 4^th opinion, it joined the 4^th Circuit in questioning the regularity of the process leading to the Order. The 9^th Circuit noted that the first executive order with the entry ban (and internal review procedures) was issued “without interagency review.” Also like the 4^th Circuit, the 9^th Circuit seemed to think the first order is relevant to the second. It described the first order in depth, and noted that the prior 9^th Circuit decision enjoining the first executive order “substantially” (but not completely) ended “the story of EO1.”

Most interesting (to me) was the conclusion to the 9^th Circuit’s analysis explaining why the order failed to justify its suspension of entry on the basis of national security. The court wrote: “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under 1182(f).” To support that citation, the Court added a “see also” to …. Justice Murphy’s (Go Blue!) dissent in Korematsu v. United States. As Ian and I have written, this case is evocative, on many levels, of the order in Korematsu, which required American citizens of Japanese descent to leave their homes and report to internment camps. Are they legally on all fours? No. But in this case, the government has been doing some things that ring a few bells, including shrieking “national security” and “no peeking!” and “no judicial review or judicial second guessing!” all the while openly relying on generalizations about an entire religion and nationals of several majority-Muslim countries. I don’t think it’s a coincidence that Korematsu has popped into so many peoples’ minds, including Judge Paez, who asked a question about Korematsu at oral argument.

Onto The Supreme Court.  With the 9^th Circuit’s opinion released, it’s now onto the Supreme Court. Both Hawaii and IRAP have filed their briefs responding to the government’s petitions for certiorari and stay requests. But some of the arguments for certiorari and stays became significant weaker after the 9^th Circuit’s decision. How?

To begin with, there are serious arguments that the case will almost certainly become moot if the Court were to hear it in the October 2017 term, which is what the government asked it to do. As Marty Lederman explained on this blog, there’s a very good argument that the case (at least the part of it concerning the entry ban) will be moot as of Wednesday. As Marty wrote, the order states that the entry ban lasts for 90 days after the order’s effective date, and because the order’s effective date was March 16, the order’s terms suggest the entry ban would no longer be operative as of June 14.

But even if Marty’s reading is incorrect, there’s still another reason why the case might become moot before the October 2017 term. The order stated that the temporary entry ban was necessary to allow the government to complete its internal review procedures. Before the 9^th Circuit, the government had argued that it could not begin those internal review procedures because they were enjoined. That’s no longer the case. (At least, it will soon be no longer the case. In footnote 25, the 9^th Circuit denied the government’s motion for a stay pending appeal, so the district court’s injunction, which covers the internal review procedures, may still be in place until the 9^th Circuits mandate issues, I think.) Once the 9^th Circuit’s mandate issues,[1] the government will be able to begin its internal review procedures, which the order represented would last 90 days. Indeed, the fact that the government envisioned the internal review procedures would last 90 days is purportedly why the entry ban lasted for 90 days—to give the government enough time to complete its review. But once the government completes its review, the order implied, the need for the entry ban would be gone. Given that there are just about 90 days between now and the first day on which the Court would hear arguments in the October 2017 term, the entry ban would no longer be in place once the Court heard the case. As Amir explained, “The only purpose of the entry ban was to allow time for an internal review, and that time [would have] already passed.”

On top of that, even if the case isn’t moot, the beginning of the internal review procedures further undermines the government’s national security rationale for the ban. As Marty and I have explained, imagine that the Supreme Court denies a stay of the 4^th Circuit and 9^th Circuit decisions. And imagine that the government takes the position that the “entry ban” becomes effective when it is allowed to go into effect. That would mean the entry ban would go into effect well after the internal review procedures have been completed. But that was the government’s purported rationale for the entry ban in the first place.

The suspension of the refugee program works a little differently. Section 6(a) suspends the refugee program for 120 days and directs the government to review refugee application and adjudication processes. Here too, however, the 9^th Circuit modified the district court’s injunction so that the government is not enjoined from carrying out the portions of section 6(a) that call for internal review of the government’s procedures. So if section 6(a) does not expire 120 days after the order’s effective date (which it may, given that the order says the suspension lasts “for 120 days after the effective date of this order”), it might expire 120 days after the government begins its internal review procedures. Even by that time, however, it’s not clear the Supreme Court would have decided the case (though it could have heard it). And again, the “national security” rationale for the refugee suspension is undermined significantly if the government takes the position that the order imposes the suspension well after its internal review procedures have been completed.

Even the portion of the case dealing with section 6(b), which caps the entry of the number of refugees for fiscal year 2017, will likely be moot too. Fiscal year 2017 ends in October, and the President will soon be able to make a determination about the number of refugees for the 2018 fiscal year.

So, to sum up: The 9^th Circuit issued a unanimous opinion invalidating the entry ban, suspension of the refugee program, and refugee cap. In many ways, the opinion undermines the arguments for certiorari and stay requests. But still, the government is seeking certiorari from decisions it insists are related to national security. And the scope of the two injunctions differs. We’ll know soon what the Supreme Court will do about these challenges, if anything.

[1] Federal Rule of Appellate Procedure 41 governs mandates.

[This Post Has Been Updated.]

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