The Ninth Circuit Court of Appeals issued its decision late Thursday, denying the federal government’s motion to stay a temporary restraining order on the President’s Executive Order. The Court heard oral arguments from both sides earlier in the week.
In a twenty-nine page, unanimous decision, the Ninth Circuit found that the Government had not shown that it was likely to succeed on its appeal of the temporary restraining order or that “failure to enter a stay would cause irreparable injury.”
One major point of contention was to what extent the courts are obligated to defer to the President on issues of immigration and national security. The Government has repeatedly argued that the Executive Order is completely “unreviewable” by the courts. The Ninth Circuit rejected this argument, referencing the checks and balances system central to our government. The Court noted that although the courts generally give deference to the President on these issues, such a claim of “unreviewability…runs contrary to the fundamental structure of our constitutional democracy,” and that “[w]ithin our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches.”
Although the Ninth Circuit did not rule directly on the merits of the case, it did find that the States of Washington and Minnesota had standing, or the right to bring this case on behalf of their residents. It also found that the Government had failed to provide any evidence of the need for the travel ban and no evidence as to why the status quo could not remain in effect until a final decision in this case is made.
The Government can now ask the full Ninth Circuit to review the decision or it can appeal to the U.S. Supreme Court. However, the Supreme Court is still one justice short, making a 4 to 4 tie likely. Such a tie would keep the Ninth Circuit’s decision in place.
Please return for future updates on this and other cases.