Ninth Circuit UPHOLDS Temporary Restraining Order On Trump's Travel Ban

The ruling is unanimous, and it's a total smackdown.

Trump FlagThe Ninth Circuit has rejected the Trump’s Administration request to set aside the restraining order on Trump’s Muslim ban aka travel ban. No irreparable harm in upholding the stay.

Here’s a tweet about it!

It appears that the ruling, 29 pages, is a total repudiation of the administration’s position. The ruling is unanimous, the states have standing. It’s a smackdown.

UPDATE (6:27 p.m.): Okay, let’s start breaking this down. Here’s the standing issue:

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

Standing is a threshold issue and, it turns out, Muslim students are students too.

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UPDATE (6:29 p.m.): Here’s a big deal. The Ninth Circuit didn’t find a likelihood of success for the government’s position, and they made a compelling due process argument that the Trumpkins have been denying existed:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens…

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id.at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

UPDATE. (6:36 p.m.): Oh look, the President weighed in.

Umm… you kind of did see them in Court. They told you to bite it.

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There are other Courts. Are you going to the Supremes? A rehearing en banc, i.e., a rehearing by a larger panel of the Ninth Circuit? There are so many questions that “see you in court” doesn’t answer… though he did use caps.

UPDATE (6:39 p.m.): So, here’s the thing, the immediate talking heads are saying, “Oh, Trump is going to the Supreme Court, and you know it’s 4-4, so we’ll see.”

Is there any indication that the conservative justices really want this Muslim ban to go forward? Aside from Clarence Thomas, I don’t see anybody else up there who really wants to sign on to the next Korematsu decision.

UPDATE (6:47 p.m.): So far this is my favorite line: “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.”

UPDATE (7:01 p.m.): Would like this tweet again if I could:

UPDATE (7:03 p.m.): Jim Acosta reports that Donald Trump just said that the 9th Circuit decision was “political.” Maybe. It seems like it was also “constitutional,” “moral,” “ethical,” and… “total.”

UPDATE (7:07 p.m.): More from the opinion:

The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.

UPDATE (7:19 p.m.): Here’s the part where the court used Trump’s own bigoted words against him:

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.

I really, really want Trump calling the Muslim ban a “Muslim ban” to be what stops the Muslim ban.

Earlier: The Best Tweets From The Ninth Circuit Immigration Argument
That Time When The GOP’s Xenophobic Impulse Gave States Standing To Block Xenophobia


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.