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Motion for Stay of an Order of the United States District Court for the Western District of Washington

No. 17-35105 D.C. No. 2:17-cv-00141

At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and STATE OF WASHINGTON V. TRUMP 3 temporarily enjoined enforcement of the Executive Order. The Government now moves for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds. To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. 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. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.
 

 

Judge(s): Not Stated
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Constitutional Law , Government / Politics , Immigration , International
 
Circuit Court Judge(s)
William C. Canby
Richard R. Clifton
Michelle T. Friedland

 
Appellant Lawyer(s) Appellant Law Firm(s)
Chad A. Readler Acting Assnt. Attorney General
Noel J. Francisco Acting Solicitor General
H. Thomas Byron Appellate Staff USDOJ
Catherine Dorsey Appellate Staff USDOJ
Douglas N. Letter Appellate Staff USDOJ
Lowell V. Sturgill Jr. Appellate Staff USDOJ
Sharon Swingle Appellate Staff USDOJ
August E. Flentje Special Counsel to Assnt. U.S. Attorney General

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jacob Campion Assnt. Attorney General - State of Minnesota
Marsha Chien Assnt. Attorney General - State of Washington
Patricio A. Marquez Assnt. Attorney General - State of Washington
Lori Swanson Attorney General - State of Minnesota
Robert W. Ferguson Attorney General - State of Washington
Colleen M. Melody Civil Rights Unit Chief - State of Washington
Anne E. Egeler Deputy Solicitor General - State of Washington
Alan I. Gilbert Solicitor General - State of Minnesota
Noah G. Purcell Solicitor General - State of Washington

 

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restriction on freedom of travel despite the existence of failed to establish that it will likely succeed on its due security policy determinations of the political branches—an who have an interest in specific non-citizens’ ability to travel plaintiff’s case,” it “must be supported in the same way as and patricio a. marquez, assistant attorneys general; no explanation for how these provisions would function in defense of the nation worthwhile.”); zemel v. rusk, 381 u.s. behind the exercise of that discretion.’” the government religious conduct for distinctive treatment cannot be nature of the allegations the states have raised with respect the states would continue to have potential claims regarding example, two visiting scholars who had planned to spend include “when the person is a religious minority in his constitutes irreparable injury.’” (quoting elrod v. burns, of powers, that injury is not “irreparable.” it may yet pursue national security. alperin v. vatican bank, 410 f.3d 532, interns and will lose its investment if they are not admitted. rather, the states are challenging the president’s state of washington v. trump 17 countries. two states challenged the executive order as “proceeding with any action that prioritizes the refugee washington alleged that the executive order affect those principles.”). 533 u.s. at 693. that would also omit claims by citizens 5 we believe that this period is long enough that the tro tro was strongly challenged in adversarial proceedings times of conflict, it most assuredly envisions a role for all who would make that determination, and when? moreover, president’s decisions about immigration policy, particularly related crimes” since then, the executive order declares that the balance of hardships and the public resumption of the refugee program, section 5(b) of the a stay pending appeal. interest in addition, the government asserts that, “[u]nlike the president, by contrast, the states have offered ample evidence that review “whether congress has chosen a constitutionally of this case, the district court’s order possesses the qualities permanent residents have no due process rights when emergency appeal. id. at *3. standard governs judicial review of all executive exercises protect the proprietary interests of the states at issue here as countries of concern in 2015 and 2016, the government has not to explain the urgent need for the executive order to be process clause. was amended to add the state of minnesota as a plaintiff and individuals,” even in times of war. humanitarian law one that “officially prefer[s] [one religious denomination] 20 state of washington v. trump substance and implementation of immigration policy. see the government has not shown that the executive order legitimate and bona fide reason, the courts will [not] look consideration. we denied the request for an immediate stay 408 u.s. 753, 762-65 (1972). accordingly, the government injunction, but the legal standards applicable to tros and preliminary 566 u.s. 189, 196 (2012) (quoting ins v. chadha, 462 u.s. depend on the success of their professors’ research. thus, as communist party despite national security concerns); ex ordinarily required the would-be appellant to show that the id. (quoting virginian, 272 u.s. at 672-73) (alterations is dependent upon the circumstances of the particular case.’” for the ninth circuit policies and procedures by which non-citizens may enter the mandel for the proposition that “‘when the executive see also, e.g., galvan v. press, 347 u.s. 522, 530 (1954) the public interest. 2:17-cv-00141 state of washington v. trump 25 district court’s order has no expiration date, and no hearing operations by acting as advocates of the rights of third parties that evening, the court entered a written order granting do not justify a stay. states’ residents abroad. these are substantial injuries and beyond facial discrimination. . . . official action that targets united states, including aliens,” regardless of “whether their were prevented from boarding airplanes bound for the immigration policy would run afoul of the constitutional and 693; non-immigrant visaholders who have been in the establishment of religion.” u.s. const. amend. i. a law that the child to influence the parents’ choice of a school”); parks executive order was issued, white house counsel donald issue an amended order superseding the executive order discrimination. we need not characterize the public interest (2016). at this stage of the litigation, we do not need to and suspended. 82 fed. reg. 8,977-80. proposed revision leaves out at least some who do. 16 (1976) (explaining that third-party standing is allowed the injury is fairly traceable to the defendant, and that it is evidenced by the massive attention this case has garnered at has a religious, not secular, purpose violates that clause, parties interested in the proceeding.” nken, 556 u.s. at 434 analysis as to any specific alleged violation. appellee state of minnesota. a stay. we emphasize, however, that our analysis is a the united states in the future.” that limitation on its face individuals have been convicted or implicated in terrorism- appellate jurisdiction unreviewable, even if those actions potentially contravene griswold v. connecticut, 381 u.s. 479 (1965). and order 13769, “protecting the nation from foreign terrorist prevail against the states’ procedural due process claims. provisions of a statute involving the liberty of persons, may disregard the see, e.g., naacp v. alabama, 357 u.s. 449 (1958). v. bullock, 697 f.3d 1200, 1203 (9th cir. 2012) (quoting in the district court, the states argued that the executive 264 (1967) (“‘[n]ational defense’ cannot be deemed an end 4 truly meant to protect against terror attacks by foreign suffered an institutional injury by erosion of the separation state of washington v. trump 3 of justice, washington, d.c., for defendants-appellants. 2 that the parties will be truly adverse and their legal filed february 9, 2017 lawful permanent residents. at this point, however, we detriment of the states, by means of an executive order that would substantially injure the states and multiple “other our conclusion here does not preclude consideration of appellate the federal judiciary retains the authority to adjudicate we agree that “the government’s interest in combating nonetheless, “courts are not powerless to review the demonstrate “that it has suffered a concrete and to the state universities give the states standing to assert the procedures to protect classified materials in civil cases); 28 c.f.r. suspend the admission of any class of aliens.” the that he would do. cognizable liberty interests in connection with travelling into reg. 8,979. the executive order requires the secretaries of the subversion of one of those liberties . . . which makes the government does not argue otherwise. they have done in the past. establishment and equal protection clauses because it was statements by decisionmakers, may be considered in context. see zadvydas v. davis, 533 u.s. 678, 695 (2001) kleindienst v. mandel, 408 u.s. 753 (1972), does not government’s motion to stay the tro pending an preliminarily concluded that significant and ongoing harm nationwide, and enjoins application of the executive order country of nationality facing religious persecution.” 82 fed. state of washington v. trump 23 556 u.s. 418, 433 (2009) (quoting virginian ry. co. v. observing that “[i]n the enforcement of these policies, the executive that the travel prohibitions harmed the states’ university those individuals have due process rights as well. zadvydas, non-citizens being held as “enemy combatants” after being united states of america, conditions in certain countries due to war, strife, disaster, 14 state of washington v. trump even irreparable harms. see melendres v. arpaio, 695 f.3d the government has not proposed a workable alternative possible due process rights of other persons who are in the “notice and an opportunity to respond,” or, in other words, shown a likelihood of success on the merits of its appeal, nor 26 state of washington v. trump states may rely on the allegations in their complaint and the procedural protections provided by the fifth cir. 1995) (citing pierce and rejecting the argument that the 620 n.w.2d 680, 683 (minn. 2001). actions such as this one. state of washington v. trump 19 injunctions are “substantially identical.” stuhlbarg int’l sales co., inc. promulgation of sweeping immigration policy. such discrimination against its minority students); see also ohio the president’s policy determinations with respect to proceedings, and our conclusion that the government has rather authority to enjoin enforcement of the executive order which the parties do not dispute are branches of the states at the successive stages of the litigation.” lujan, 504 u.s. at historically viewed as capable of resolution through the injuries listed above would be avoided. exercise of judicial discretion,’ and ‘the propriety of its issue v. bush, 553 u.s. 723, 765 (2008) (rejecting the idea that, statute to eliminate constitutional defects); cf. aptheker v. in the context of adjudicating a constitutional challenge to an his or her nationality. id. third, section 5(c) of the directed the parties to propose a briefing schedule for the itself and considerations of public policy and justice which control, more personal rights in abortion and yet any physician may assert those rights . . . nonadherents ‘that they are outsiders, not full members liberty, or property, without due process of law.” u.s. practice: how would the “national interest” be determined, bound up” in the universities’ capacity to teach them. heights v. metro. housing dev. corp., 429 u.s. 252, 266- the government has pointed to no evidence that any of an appealable preliminary injunction. the parties showing of each element of standing.” townley v. miller, added). deprivation and have them considered. united states v. 82 fed. reg. 8,977. citing the terrorist attacks of september of immigration authority. in fact, the mandel standard widespread. it was reported that thousands of visas were to add a claim under the tenth amendment. washington argument was conducted by telephone. first, we decline to limit the scope of the tro to lawful our 95 (1968)). ”standing is an essential and unchanging part of information. courts regularly receive classified information under seal background 8 the government now moves for an emergency stay of the on the same day, washington filed an emergency motion for deprivation of constitutional rights ‘unquestionably the states were likely to be able to prove was unlawful. id. independent respects: (1) the tro extends beyond lawful analysis of the hardships and public interest in this case state of washington; state of shown that it is likely to succeed on the merits of its appeal, affirmative argument showing that the states’ procedural executive order to be immediately reinstated. immigration “is subject to important constitutional tro motion to meet their burden. see id. with these contrary view is likely to prevail. moreover, even if limiting regulations only to minority religions); village of arlington presentations sharpened. massachusetts, 549 u.s. at 517 claim, we reserve consideration of these claims until the restoration act, and the administrative procedure act. preliminary injunction.2 harm americans and that they have no ties to terrorism.” id. and binding, will persist past the immediate stage of these command for any of the executive departments. moreover, categorically bar u.s. citizens from asserting cognizable the government has not shown that it is likely to standard; as cases like zadvydas and chadha make clear, institutional capacity, informational access, and expertise of state of washington v. trump 7 argued and submitted february 7, 2017 boren, 429 u.s. 190, 195 (1976). likewise, doctors have 8 state of washington v. trump state of washington v. trump 13 district courts do not require a determination of their eligibility for make case-by-case exceptions to these provisions “when in tro should be stayed in light of the relative hardships and branches have unreviewable authority over immigration or 1 scheduled briefing on the states’ motion for a preliminary consider the public interest generally. see nken, 556 u.s. at immediate stay while its emergency stay motion was under judicial process.’” id. (quoting flast v. cohen, 392 u.s. 83, decision to issue or deny an individual visa based on the workers, 598 f.3d 1061, 1067 (9th cir. 2010). this rule has in travelling abroad and thereafter re-entering the united process”); yamataya v. fisher, 189 u.s. 86, 100-01 (1903) (reaffirming, zadvydas, 533 u.s. at 695; chadha, 462 u.s. at 940-41. permanent residents is moot because several days after the of their due process claims, without discussing or offering states constitution envisions for the executive in its 500, 514 (2006), and we consider the government’s court has ever held that courts lack the authority to review we therefore hold that the states have standing.5 of the attorney general, st. paul, minnesota; for plaintiff- cir. 2015), aff’d by an equally divided court, 136 s. ct. 2271 second, we decline to limit the geographic scope of the totally unrestricted freedom of choice.”). entry into the united states of individuals from seven for those who would suffer unnecessarily, but it has offered unable to obtain a visa. similarly, the university of intelligence to evaluate the united states’ visa, admission, outside washington and minnesota. we decline to modify the supreme court has explained that this is because repeatedly and explicitly rejected the notion that the political fourteen days. in light of the unusual circumstances of this the geographic scope of the injunction would be desirable, nationwide enforcement of sections 3(c) and 5(a)-(c) in their f. mcgahn ii issued “[a]uthoritative [g]uidance” stating that presence here is lawful, unlawful, temporary, or permanent.” there is no precedent to support this claimed constitutional rights and protections. the government and national security, neither the supreme court nor our with respect to national security and foreign relations). order, the government has taken the position that we must to protected interests due to the executive order. indeed, the stay applicant has made a strong showing that he is likely most critical,” nken, 556 u.s. at 434, and the last two steps 4 state of washington v. trump inc. v. city of hialeah, 508 u.s. 520, 534 (1993) (“the free in short, although courts owe considerable deference to the states argue that the executive order violates the we are satisfied that in the extraordinary circumstances appeal is premature. a tro is not ordinarily appealable. united states but temporarily departed or wish to const. amend. v. the government may not deprive a that the allegedly wrongful behavior could not reasonably be cannot rely upon the government’s contention that the (quoting nken v. holder, 556 u.s. 418, 426 (2009)). we are 465 u.s. 668, 688 (1984) (o’connor, j., concurring)). the government argues that the tro is overbroad in two 24 state of washington v. trump two logical steps: (1) the executive order prevents nationals could eliminate federal court habeas jurisdiction over enemy 559 n.17 (9th cir. 2005). to the contrary, while counseling rights. even if we assume that states lack such rights, an issue we need to establish article iii standing, a plaintiff must omits aliens who are in the united states unlawfully, and behalf of their patrons.”); pierce v. soc’y of sisters, 268 u.s. injunction, it is apparent from the district court’s scheduling cir. 2015) (“[i]t is the resolution of the case on the merits, realistically be administered only in parts such that the stay will substantially injure the other parties interested in and some will not be permitted to return if they leave. and raya-vaca, 771 f.3d 1195, 1204 (9th cir. 2014); accord arguments. immigration and nationality act (ina) § 217(a)(12), unconstitutional and to enjoin their enforcement nationwide. limitations”); chadha, 462 u.s. at 940-41 (rejecting the procedural due process claims, the district court nevertheless defendants-appellants. f. kelly, secretary of the both schools have a mission of “global engagement” and although the government points to the fact that congress and the intended to disfavor muslims. in support of this argument, designed to promote such a goal. . . . it would indeed be the fifth amendment of the constitution prohibits the the national interest.” 82 fed. reg. 8,978-80. section 5(e) cannot hire faculty from the seven affected countries, which the government moves to stay the district court’s order expected to recur.” friends of the earth, inc., v. laidlaw evaluating whether a governmental action was motivated by if it “possesses the qualities of a preliminary injunction.” as we have explained above, the government has not likelihood of success—due process at issue in this emergency proceeding is executive our decision is guided by four questions: “(1) whether preliminary one. we are tasked here with deciding only interests involved, the pace of the current emergency 10 state of washington v. trump 460 (1963))). nor has the government established that the 1180 (wash. 1986) (en banc); univ. of minn. v. raygor, noah g. purcell (argued), solicitor general; marsha chien 6 state of washington v. trump advance their educational goals. students and faculty at any means possible to enter the united states. the united under state law. see, e.g., hontz v. state, 714 p.2d 1176, have rights of its own to assert, see kerry v. din, 135 s. ct. challenged sections of the executive order are illegal and failed to clear each of the first two critical steps. we also by federal statute for refugees seeking asylum and related proof, i.e., with the manner and degree of evidence required zadvydas v. davis, 533 u.s. 678, 693 (2001). these rights state of washington v. trump 29 relief is necessary to support its efforts to prevent terrorism, order 13769, “protecting the nation from foreign terrorist lemon v. kurtzman, 403 u.s. 602, 612-13 (1971), as does classifications are closely connected to matters of foreign are not subject to the constitution when policymaking in that merits of this appeal have been fully briefed. and 5(e) of the order. it is well established that evidence of specifically enumerated congressional policy to the captured in afghanistan or elsewhere and accused of likely success in this appeal and whether the district court’s to immigration policies and procedures, bans for 90 days the over another,” larson v. valente, 456 u.s. 228, 244 (1982). 2128, 2139 (2015) (kennedy, j., concurring in judgment); university of washington. the university of washington 6 of standing” is whether the plaintiff has a sufficiently irreparably injured absent a stay; (3) whether issuance of the minorities,” and prohibited the government from the right” as the third party; or when the third party is less the government contends that the district court lacked 1, 17 (1965) (“[s]imply because a statute deals with foreign stay pending appeal is denied. secure the protection that the constitution grants to the government’s “authority and expertise in [such] matters the executive order suspends for 120 days the united states wildlife, 504 u.s. 555, 560 (1992). the “gist of the question the operators of state universities, the states may assert not that the states’ proprietary interests as operators of their public entry into the united states,” which, among other changes 11, 2001, and stating that “numerous foreign-born burden to make “a strong showing that [it] is likely to” this is no less true when the challenged immigration endorsement of a religion “sends the ancillary message to jurisdiction at the merits stage of this appeal. see nat’l indus., inc. v. order violates the procedural due process rights of various court jurisdiction over habeas petitions by such individuals). legislative or executive action when constitutional rights are as well as evidence they claim suggests that the executive state’s economy and public universities in violation of the massachusetts v. epa, 549 u.s. 497, 516 (2007). “those when the third party’s interests are “inextricably bound up and out of the united states, and (2) the tro applies v. john d. brush & co., inc., 240 f.3d 832, 839 n.7 (9th cir. 2001). structure of our constitutional democracy. see boumediene interpretation by white house counsel, even if authoritative concrete and particularized injury to their public universities, would satisfy the minimum requirements of due process on 21, 33-34 (1982). the government has provided no to a hearing on the charges underlying any attempt to example, the government has failed to establish that lawful v. sections 3(c) and 3(e) of the executive order do not apply to a discriminatory purpose). and that proposition seems unlikely. political branches’ actions” with respect to matters of the executive order suspends for 90 days the entry of aliens some respects, it is not our role to try, in effect, to rewrite the as a plurality of the supreme court cautioned in hamdi v. citizens. rather, they “appl[y] to all ‘persons’ within the (explaining that courts should defer to the political branches v. humanitarian law project, 561 u.s. 1, 28 (2010), the research missions of their universities are harmed by the establishing that the white house counsel is empowered to who seek access to their market or function.” craig v. the states have asserted other proprietary interests and also also apply to certain aliens attempting to reenter the united to the united states. see din, 135 s. ct. at 2139 (kennedy, universities are sufficient to support standing, we need not reach those before the district court and that it has or will remain in force assistant attorney general; noel j. francisco, acting permanent residents have due process rights, the states’ omitted). “the party requesting a stay bears the burden of parties at this very preliminary stage and are mindful that our department of homeland security; several factors, including whether the government has founding principles.” id. it asserts, “deteriorating likelihood of success—religious discrimination the degree of hardship caused by a stay or its denial, and the constitution and an injunction barring its enforcement. the statutory requirement for uniform immigration law and whatever other evidence they submitted in support of their order but may also assert the rights of their students and constitutional challenges to executive action. exclude him.” (quoting rosenberg v. fleuti, 374 u.s. 449, project, 561 u.s. at 34 (quoting id. at 61 (breyer, j., are nationals of the seven affected countries. these students state of washington v. trump 9 the courts. see humanitarian law project, 561 u.s. at 33- relationship with a u.s. resident or an institution that might indeed asserts that it violates separation of powers for the enter the united states; one was informed he would be due process claims fail as to these categories of aliens. for of the states’ universities here are aligned with their the interests of their citizens as parens patriae. because we conclude finally, in evaluating the need for a stay, we must with the activity the litigant wishes to pursue”; when the republic nat’l life ins. co., 677 f.2d 1258, 1262 (9th cir. 1982). united states court of appeals and refugee programs during the periods in which entry is order was intended to be that ban, including sections 5(b) binding on all executive branch officials responsible for and independent constitutionally protected liberty interests the executive to promote national security, and have done so (1985); asse int’l, inc. v. kerry, 803 f.3d 1059, 1073 (9th liberty interests in the receipt of visas by alien spouses). (emphasizing that the power of the political branches over rumsfeld, 542 u.s. 507 (2004), “whatever power the united split their families, restricted their travel, and damaged the article iii, section 2 of the constitution allows federal order those organizations to infiltrate the united states, or gaps in the vetting branch of the government must respect the procedural safeguards of due the re-entry of a permanent resident alien.”). lair v. bullock, 697 f.3d 1200, 1203 (9th cir. 2012) hearing prior to restricting an individual’s ability to travel. establishment clause claims because they lack establishment clause appeal on its arguments with respect to the due process schools cannot consider attractive student candidates and unconstitutional and violative of federal law, and a federal § 17.46(c) (“members of congress, justices of the united states to rule on the government’s motion, we must consider tro. the fifth circuit has held that such a fragmented irreparable injury might otherwise result.” nken v. holder, see, e.g., texas v. united states, 787 f.3d 733, 767-68 (5th not met its burden of showing likelihood of success on permitted to assert the rights of their students. see, e.g., case, in which the government has argued that emergency reno, 70 f.3d 1045, 1056 (9th cir. 1995). colleen m. melody, civil rights unit chief; anne e. j., concurring in judgment); id. at 2142 (breyer, j., 1164, 1169 (9th cir. 2016) (recognizing that “the power to court has likewise made clear that “[a]lthough alienage showing that the circumstances justify an exercise of that only their own rights to the extent affected by the executive prevented by the executive order from coming to the humanitarian law project, 561 u.s. 1, 33-34 (2010) better equipped to make appropriate distinctions. for now, court for the western district of washington, challenging denies re-entry to certain lawful permanent residents and enter the united states. the university of washington also immune from judicial control” (quoting fiallo v. bell, country, unable to return to the universities at all. the (citing similar authorities). as in those cases, the interests application of a congressionally enumerated standard to the naming as defendants the president, the secretary of the (quoting baker v. carr, 369 u.s. 186, 204 (1962)). (providing procedures governing filings under seal). considered in evaluating establishment and equal protection “personal stake in the outcome of the controversy” to ensure cir. feb. 4, 2017). the motion was submitted after oral state and homeland security and the director of national 34. position it has occupied for many previous years. appropriate mental and religious training [and] the right of whether the government has made a strong showing of its 2002). we may nonetheless review an order styled as a tro 990, 1002 (9th cir. 2012) (“it is well established that the united states district court for the involves particularly sensitive and weighty concerns on both of that order proceeds. faculty members.4 attorney general; attorney general’s office, seattle, motion the next day, and the district court held a hearing the 434. aspects of the public interest favor both sides, as washington also alleged that the executive order was not we have also received many amicus curiae briefs in support of washington asked the district court to declare that the erred by issuing an “overbroad” tro. specifically, the standing to sue. we have an independent obligation to united states, 130 u.s. 581, 604 (1889) (“the powers to declare war, nken, 556 u.s. at 434). “the first two factors . . . are the see 8 u.s.c. § 1231 note 8; and applicants who have a sec’y of state, 378 u.s. 500 (1964) (holding unconstitutional executive order directs the secretary of state to prioritize plaintiff school had no standing to assert claims of 2 state of washington v. trump tillerson, secretary of state; john dissenting)); see also united states v. robel, 389 u.s. 258, of re-entry. see id. at 35 (“[t]he courts must evaluate the to support standing, at least at this preliminary stage of the united states; u.s. department of specifically, the states allege that the teaching and to their religious discrimination claims. we express no view unimpaired the constitutional safeguards of civil liberty”); house counsel’s interpretation of the executive order is placed immediately into effect, the government submitted and the united states (collectively, “the government”). in light of the government’s shifting interpretations of the entirety. id. it enjoined section 5(e) to the extent that section attorney general; douglas n. letter, sharon swingle, h. our system, it is the role of the judiciary to interpret the law, foreign policy arguments that are offered to justify power to switch the constitution on or off at will”). within constitutionality of—and even invalidate—actions taken by sponsored two medicine and science interns who have been two words confine ‘the business of federal courts to are reached “[o]nce an applicant satisfies the first two and set deadlines for the filing of responsive and reply briefs the opportunity to present reasons not to proceed with the indeed, federal courts routinely review the permitted to assert the constitutional rights of their members. not decide, that is irrelevant in this case because the states are asserting judiciary to entertain a constitutional challenge to executive discretionary waiver provisions are a sufficient safety valve returning resident alien is entitled as a matter of due process both the government and the states. jacob campion, assistant attorney general; alan i. gilbert, from traveling for academic and personal reasons. cannot say that the government has established that a questions presented in an adversary context and in a form not persuaded that the government has carried its burden for per curiam order allegations and evidence, the states must make a “clear at the time of the adoption of the constitution”); chae chan ping v. jurisprudence. see, e.g., cardenas v. united states, 826 f.3d amendment’s due process clause are not limited to reform and restructuring act, the religious freedom executive order suspends indefinitely the entry of all syrian expel or exclude aliens [is] a fundamental sovereign attribute likely that a favorable decision will redress that injury.” id. nationals but rather was intended to enact a “muslim ban” as permanent residents, and covers aliens who cannot assert the tro. washington v. trump, no. c17-0141-jlr, 2017 for longer than the fourteen-day period identified in federal donald j. trump, president of the 427 u.s. 347, 373 (1976))). executive order’s effect on their faculty and students who than present evidence to explain the need for the executive department of homeland security, the secretary of state, state of washington filed suit in the united states district government’s stay motion because the government’s according to declarations filed by the states, for more generally, even if the tro might be overbroad in states that situations that would be in the national interest 12 state of washington v. trump supreme court, and judges of the united states courts of appeal and non-immigrant visaholders without constitutionally advocacy organizations such as the naacp have been enforcement of sections 3(c), 5(a)-(c), and 5(e) of the a statute denying passports to american members of the irreparable injury, and we therefore deny its emergency court’s order merely returned the nation temporarily to the the detention of a law-abiding and loyal american of to their proprietary interests traceable to the executive executive order for visas; it had made plans for their arrival or less, the conduct of all civilized nations.”). exercises’ immigration authority ‘on the basis of a facially the government suggests that the executive order’s 7 the government argues that, even if the states have from impermissibly discriminating among persons based on quirin, 317 u.s. 1, 19 (1942) (stating that courts have a duty, attorneys, appellate staff; chad a. readler, acting when the executive order was in effect, the states contend order beginning in february 2017, but they have been unable to wl 462040 (w.d. wash. feb. 3, 2017). the district court even by congressional statute, congress and the executive we conclude that the states have made a sufficient showing even if the claims based on the due process rights of make treaties . . . and admit subjects of other nations to citizenship, are country do not bear hostile attitudes toward it and its authorizing, planning, committing, or aiding the terrorist government argues that most or all of the individuals most relevant for our purposes, schools have been james l. robart, district judge, presiding applies to lawsuits challenging an executive branch official’s otherwise explained how the executive order could 722 f.3d 1128, 1133 (9th cir. 2013).3 shielded by mere compliance with the requirement of facial person of one of these protected interests without providing particular circumstances and determine what procedures avoiding separation of families, and in freedom from dissenting) (six justices declining to adopt a rule that would political branches is particularly appropriate with respect to no evidence to rebut the states’ argument that the district to the extent that the government claims that it has the rights of their students and professors. male doctors do not have and vindicate its interests in the full course of this litigation. cir. 2015). terrorism is an urgent objective of the highest order,” holder we disagree, as explained fundamental principles that inhere in ‘due process of law’ as understood 510, 536 (1925) (allowing a school to assert the “right of process.” but the government may provide a court with classified proceedings. on january 27, 2017, the president issued executive ass’n of indep. sch. v. goff, 92 f.3d 419, 422 (6th cir. 1996) offered any evidence or even an explanation of how the national security executive order. two days later, washington’s complaint national security and foreign affairs, given the relative memorandum, “previously admitted aliens who are executive order no longer applies to lawful permanent executive identified the seven countries named in the executive order because the president has “unreviewable authority to 723 (striking down a federal statute purporting to deprive the government argues that the states may not bring even in times of conflict. see, e.g., boumediene, 553 u.s. argument that congress has “unreviewable authority over succeed on appeal on its arguments about, at least, the states’ factors in light of the limited evidence put forward by both legal standard the government has not shown that a stay is necessary courts do not have access to classified information about the threat posed of entry and interconnected transit system and that would 28 state of washington v. trump government has done little more than reiterate that fact. religion. de la cruz v. tormey, 582 f.2d 45, 50 (9th cir. litigant is “fully, or very nearly, as effective a proponent of for publication the president had stated during his presidential campaign would be redressed if they could obtain the relief they ask despite the district court’s and our own repeated invitations any other matter on which the plaintiff bears the burden of 3 on the due process rights of persons who will suffer injuries has already incurred the costs of visa applications for those constitutionally sufficient process to challenge their denial present case, by contrast, is not about the application of a executive order. see singleton v. wulff, 428 u.s. 106, 114- 919, 943 (1983)). we are called upon to perform that duty arguments addressed in other parts of this opinion, the relations [does not mean that] it can grant the executive 16 state of washington v. trump washington v. trump, no. 17-35105, 2017 wl 469608 (9th people, equally in war and in peace . . . under all codified at 8 u.s.c. § 1187(a)(12)). second, section 5(a) of deference to the political branches on matters of immigration exercises of policymaking authority at the highest levels of attacks perpetrated on september 11, 2001); aptheker v. states’ request for a preliminary injunction and denied the discretion.” id. at 433-34. 1978). rely on such visiting students, scholars, and faculty to understood as holding, that administrative officers, when executing the united states. three are at issue here. first, section 3(c) of all sovereign powers, restricted in their exercise only by the constitution we therefore conclude that the states have alleged harms hardships discussed above, these competing public interests aliens in at least three independent ways. first, section 3(c) as faculty, some will be prevented from performing research, three branches when individual liberties are at stake.” id. at of the political community.’” santa fe indep. sch. dist. v. time at washington state university were not permitted to states. third, section 5 contravenes the procedures provided for: a declaration that the executive order violates the sec’y of state, 378 u.s. 500, 516 (1964) (invalidating a challenge to section 3(c) based on its application to lawful and minnesota (collectively, “the states”) jointly filed an japanese ancestry during world war ii and affirming federal omits portions of the quoted language to imply that this non-immigrant visaholders from exercising their separate compel a different conclusion. the government cites august e. flentje (argued), special counsel to the assistant when motivated by national security concerns, are although our jurisprudence has long counseled no. 17-35105 courts to consider only “cases” and “controversies.” the states argue that the executive order causes a above. solicitor general; lori swanson, attorney general; office 536 (plurality opinion). 68 (1977) (explaining that circumstantial evidence of intent, the three branches.” zivotofsky ex rel. zivotofsky v. clinton, do not automatically trump the court’s own obligation to by terrorist organizations operating in particular nations, the efforts of not whether the injunction is stayed pending appeal, that will exchanges with other nations or with enemy organizations in that the government has shown that it is “absolutely clear executive order provides lawful permanent residents with 18 state of washington v. trump motion for a stay. section 3(c) prohibits certain lawful permanent residents and a duty that will sometimes require the “[r]esolution of allow the secretaries of state and homeland security to the government has argued that, even if lawful argument de novo, see, e.g., hajro v. u.s. citizenship & parents to choose schools where their children will receive the government argues that the district court lacked should be considered to have the qualities of a reviewable from seven countries: iraq, iran, libya, somalia, sudan, policy and national security,” courts “can and do review the states’ claims raise serious allegations and present counsel d.c. no. sought an emergency stay in this court, including an “purports to prioritize refugee claims of certain religious refugee admissions program. 82 fed. reg. 8,979. upon serv. emps. int’l union v. nat’l union of healthcare litigation challenging the constitutional authority of one of ironic if, in the name of national defense, we would sanction been permitted to assert the rights of their patients. see, e.g., even the most preliminary stages. on the one hand, the temporarily depart, see landon, 459 u.s. 33-34; refugees, claims of certain religious minorities.” the court also temporarily abroad now or who wish to travel and return to union, 513 u.s. 454, 479 (1995) (declining to rewrite a rights of the students, scholars, and faculty affected by the minnesota, state of washington v. trump 21 egeler, deputy solicitor general; robert w. ferguson, unconstitutionally and illegally stranded its residents abroad, state of washington v. trump 27 proceedings. on this record, therefore, we cannot conclude briefs and oral arguments before the district court. the “in time of war as well as in time of peace, to preserve (reaffirming the broad power of congress over immigration, but homeland security; rex w. particularized injury that is either actual or imminent, that circumstances.”). we are mindful that deference to the shown that they will likely succeed on some of their the states have offered evidence of numerous statements by at stake.” american-arab anti-discrimination comm. v. public interest in granting or denying a stay. we assess those government from depriving individuals of their “life, seeking to re-enter the united states. see id. (“[t]he equal protection clause likewise prohibits the government particular facts presented by that visa application. the minnesota’s public universities were similarly restricted order provides for such process. rather, in addition to the instead, the government has taken the position that the neutrality.”); larson, 456 u.s. at 254-55 (holding that a was being inflicted on substantial numbers of people, to the entry into the united states” (the “executive order”). as to any of the states’ other claims. cleveland bd. of educ. v. loudermill, 470 u.s. 532, 542 the existence of such persons is obvious. immigration servs., 811 f.3d 1086, 1098 (9th cir. 2016). doe, 530 u.s. 290, 310 (2000) (quoting lynch v. donnelly, sufficient notice and an opportunity to respond. second, id. at 2142 (breyer, j., dissenting); kleindienst v. mandel, “the united states must ensure that those admitted to this not the president, and he is not known to be in the chain of in place for that. 28 c.f.r. § 17.17(c) (describing department of justice the case-or-controversy requirement” and is therefore a vigorously contested the legal basis for the tro in written because standing is “an indispensable part of the recently suggested by the government, in its reply thomas byron, lowell v. sturgill jr., and catherine dorsey, the states argue that we lack jurisdiction over the district court preliminarily ruled in their favor and signed by the president and now challenged by the states, ascertain our jurisdiction, arbaugh v. y & h corp., 546 u.s. pending this appeal. “a stay is not a matter of right, even if and civil unrest increase the likelihood that terrorists will use immediately canceled, hundreds of travelers with such visas enter state universities, some will not join those universities and maintain its confidentiality. regulations and rules have long been states must be vigilant during the visa-issuance process to political branches, the supreme court has made clear that immigration policy, that “this court has never held, nor must we now be clear that the schools have standing to assert these arguments conclusion been uniformly permitted to resist efforts at restricting their state of washington v. trump 5 substantial deference to the immigration and national parent’s right to direct the education of his children’] on (quoting hilton v. braunskill, 481 u.s. 770, 776 (1987)). alien from any of the countries named in the order has order that the tro will remain in effect for longer than the scope of the tro in either respect. in itself, justifying any exercise of legislative power relief in the united states. the district court held generally ex parte milligan, 71 u.s. 2, 120-21 (1866) (“the have viable due process claims, but the government’s and faculty cannot travel for research, academic on the emergency stay motion over the next two days.1 not review its decision at all.8 united states, even if unlawfully, see zadvydas, 533 u.s. were detained. three days later, on january 30, 2017, the executive order. see united states v. nat’l treasury emps. our decision in townley concerned a motion for a preliminary affected by the executive order have no rights under the due refugee claims based on religious persecution where a has been scheduled. although the district court has recently constitutional applications). the political branches are far solicitor general; civil division, united states department states after travelling abroad. landon v. plasencia, 459 u.s. the regulation of aliens,” and affirming that courts can immigration and national security, it is beyond question that united states, 272 u.s. 658, 672 (1926)). “it is instead ‘an day after that. standing reviewability of the executive order purpose beyond the face of the challenged law may be before: william c. canby, richard r. clifton, and refugee’s religion is the minority religion in the country of sections 3(c), 5(a)-(c), and 5(e) of the executive order, at *2. the district court enjoined and restrained the to succeed on the merits; (2) whether the applicant will be government does not merely argue that courts owe prerequisite to our jurisdiction. see lujan v. defs. of due process clause claim, and we also note the serious minnesota; (2) as a result, some of these people will not runyon v. mccrary, 427 u.s. 160, 175 & n.13 (1976) (“it is perpetrated a terrorist attack in the united states.7 430 u.s. 787, 792 (1977))); see also holder v. temporarily enjoined enforcement of the executive order. refugees. id. sections 3(g) and 5(e) of the executive order state of washington v. trump 15 able to assert her own rights). vendors, for example, “have enforcing the executive order. the white house counsel is sides. nevertheless, we hold that the government has not ability of an elected president to enact policies. and on the has it shown that failure to enter a stay would cause on behalf of his female patients. see singleton, 428 u.s. at 118. sch. of bus., inc. v. symington, 51 f.3d 1480, 1487-88 (9th washington was in the process of sponsoring three ensure that those approved for admission do not intend to concerns that justified those designations, which triggered visa singleton, 428 u.s. at 115. and the universities’ reputations for the foregoing reasons, the emergency motion for a the government filed a notice of appeal the next day and rule of civil procedure 65(b). see, e.g., id. abroad cannot visit. some have been stranded outside the envtl. servs., inc., 528 u.s. 167, 189 (2000) (emphasis lawful permanent residents were no longer part of this case, of seven countries from entering washington and factors,” id. at 435. we conclude that the government has it is enough for us to conclude that the government has to avoid irreparable injury. nken, 556 u.s. at 434. although michelle t. friedland, circuit judges do not reach such a legal conclusion for ourselves, but we there might be persons covered by the tro who do not public has a powerful interest in national security and in the collaboration, or for personal reasons, and their families indeed, the government does not contend that the executive exercise clause, like the establishment clause, extends conclude that the final two factors do not militate in favor of 561. at this very preliminary stage of the litigation, the uncontroversial principle that is well-grounded in our courts can and do review constitutional challenges to the at this stage of the proceedings, it is the government’s parte endo, 323 u.s. 283 (1944) (holding unconstitutional students. the students’ educational success is “inextricably in the tro that the states were likely to prevail on the merits prospective employees from countries covered by the per curiam: light of legislative history demonstrating an intent to apply while nevertheless applying only within the states’ borders. united states or denied entry on arrival, and some travelers amended motion for a tro. the government opposed the process argument in this appeal. [asserting free-association rights, privacy rights, and ‘a order. the necessary connection can be drawn in at most the president about his intent to implement a “muslim ban” the impact of the executive order was immediate and clause claims. see, e.g., church of the lukumi babalu aye, exercised by the government’s political departments largely if the executive order were reinstated even temporarily, it western district of washington the executive order makes several changes to the district court’s temporary restraining order while its appeal other, the public also has an interest in free flow of travel, in first and fifth amendments, the ina, the foreign affairs motion for stay of an order of the the proceeding; and (4) where the public interest lies.” lair we have no difficulty concluding that the states’ injuries executive action in those arenas for compliance with the syria, and yemen. 82 fed. reg. 8,977-78 (citing the constitution of the united states is a law for rulers and permanent residents and the additional category more a temporary restraining order (tro) seeking to enjoin the plaintiffs-appellees, (citing lujan, 504 u.s. at 560-61). state of washington v. trump 11 has not demonstrated that the states lack viable claims based unreviewability, which runs contrary to the fundamental including the historical background of the decision and 22 state of washington v. trump employees and students, separated families, and stranded the nor has the government established that the white executive order, we cannot say that the current access to classified information . . . .”); w.d. wash. civ. l.r. 5(g) subject matter jurisdiction because the states have no permissible means of implementing that power”).6 combatants, because the “political branches” lack “the constitution. to the contrary, the supreme court has facially neutral statute violated the establishment clause in under the “third party standing” doctrine, these injuries federal courts of jurisdiction over habeas petitions filed by in this case. more definitely than this; when considered alongside the washington; for plaintiff-appellee state of washington. significant constitutional questions. in light of the sensitive residents. the government has offered no authority particular facts presented in an individual visa application. action implicates national security concerns. see ex parte the first amendment prohibits any “law respecting an provides what due process requires, such as notice and a requirements, can be extrapolated to justify an urgent need for the deference to the national security determinations of the the political branches are plainly not subject to the mandel policy. texas v. united states, 809 f.3d 134, 187-88 (5th see bennett v. medtronic, inc., 285 f.3d 801, 804 (9th cir. form of the tro that accounts for the nation’s multiple ports presented an alternative standing theory based on their ability to advance


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