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In Washington v Trump, the 9^th circuit court of appeals declined to grant a stay of the federal district court’s order.  In doing so, the court had to review the likelihood that the executive branch would succeed on the merits.

The executive branch argued that “the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” The Executive Branch relied on the separation of powers.

The judiciary confirmed that there is a constitution and that all branches of government are bound by it.  The 9^th circuit court of appeals observed that the Executive Branch’s argument “runs contrary to the fundamental structure of our constitutional democracy.”  The court then provided a primer on democratic principles: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case. 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 and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”  [Citations omitted].  The court further noted that even executive actions in the name of national security are subject to judicial review --   “federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.”

As the validity of the executive action, the court concluded that executive action violated due process in several ways – (1) by denying re-entry to “certain lawful permanent residents and non-immigrant visaholders” without notice or opportunity to be heard, (2) by prohibiting “certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States,” and (3) by violating federal statute which sets up a process by which “refugees seeking asylum and related relief in the United States.”

The court also examined the first amendment challenge to the executive action because the executive order intended to disfavor a class of people on the basis of their religion. The court noted that it could look at evidence beyond the face of the executive order itself to determine the purpose of that executive action.  In that regard, the court examined public statements made by the president about the intent to implement a “Muslim ban.”  The court acknowledged that the challenges to the executive order raise “serious allegations and present significant constitutional questions.”  It reserved consideration of these claims until a full merits review on appeal.