In Washington v Trump, the 9th 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 9th 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.
Labels: "Muslim ban", appeal, appeals, Constitution, due process, Executive Action, Immigration, National Security, President Trump, Travel Ban, Washington v Trump