Appeals Court Upholds Lower Court Order Blocking Implementation of Key Portions of Refugee/Travel Ban Executive Order
Friday, February 10, 2017
 | A federal appeals court three-judge panel has upheld a lower court order that has temporarily halted implementation of five key aspects of the Executive Order on Refugees, Immigration, and Travel to the United States that was signed by President Donald J. Trump on January 27, 2017. The unanimous decision, handed down on Thursday, February 9, 2017, by the United States Court of Appeals for the Ninth Circuit, represented a total – but preliminary -- victory for the states of Washington and Minnesota, which filed suit against President Donald J. Trump on Monday, January 30, seeking to invalidate key parts of the controversial Executive Order. |
One day after the three-judge panel issued its ruling, a yet-to-be-identified judge on the Ninth Circuit Court of Appeals requested that a vote of the full Court be held to determine whether the order issued by the three-judge panel should be reconsidered by a larger panel of the Court. As a result of this judge’s request, an “en banc” reconsideration will occur if a majority of the judges on the Court vote in favor of such a reconsideration.
The Department of Justice has the option now of opposing en banc reconsideration of the decision of the three-judge panel, supporting en banc reconsideration of the decision, appealing the three-judge panel’s decision to the Supreme Court of the United States, or simply allowing the TRO to remain in effect until the District Court rules on the merits of the lawsuit.
Neither the Appeals Court nor the District Court have actually ruled on the merits of the lawsuit challenging the Executive Order. Instead, both courts have ruled on whether to bar implementation of key aspects of the Executive Order while the courts are examining whether the Executive Order is constitutional and within the powers of the President of the United States. Both Courts have agreed to halt implementation while the Courts address the merits of the lawsuit.
Impact of Court Action. Four of the five aspects of the Executive Order that have been halted as a result of the District Court and Appeals Court rulings deal with the Executive Order’s provisions relating to the U.S. Refugee Admissions Program (USRAP). The fifth deals with the Executive Order’s 90-Day travel ban for citizens of seven majority-Muslim countries.
With respect to refugees, the District Court’s ruling prevents the President, for now, from halting the USRAP for 120 days; prevents him from indefinitely barring Syrian refugees from the United States; and prevents him from prioritizing religious minorities and deprioritizing religious majorities for admission to the U.S. as refugees. However, the ruling does not prevent the Administration from reducing the number of refugee admissions planned for the current fiscal year from 110,000, as previously planned, down to 50,000. And it does of prevent him from conducting the reviews or instituting new vetting procedures as called for in the executive order.
This means that the U.S. will be allowed to accept only about 16,000 more refugees this fiscal year, since it already has admitted over 33,000 since the year began on October 1, 2016.
With respect to the 90-day travel ban that is contained in the Executive Order for people with travel documents from Iran, Iraq, Libya, Somalia, Sudan, Yemen and Syria, the Court actions prevent the President, for now, from enforcing the ban.
The Appeals Court Action. Last week’s action in the Ninth Circuit Court of Appeals began on Monday, February 6, 2017, when the Federal Government and the states of Washington and Minnesota filed briefs with the Court. A three-judge panel consisting of Judge William C. Canby, an appointee of President Jimmy Carter; Richard R. Clifton, an appointee of President George W. Bush; and Michelle T. Friedland, an appointee of President Barack Obama; heard oral arguments in the case on Tuesday, February 7th. The panel ruled unanimously in favor of the States of Washington and Minnesota two days later, on Thursday, February 9th.
Late on Friday, February 10th, the Chief Judge of the Ninth Circuit Court of Appeals revealed that a judge on the Court had requested that a vote be held of the entire Court on whether the decision of the three-judge panel should be reheard by an en banc panel. The Chief Judge set a briefing schedule calling for the parties in the case to file briefs by Thursday, February 16th, providing their views on whether the case should be reheard en banc. Unless the judge who requested the vote withdraws his request, the full Court of Appeals will then vote after reviewing the briefs filed by the parties in the case on whether there should be an en banc rehearing of the case.
The District Court Action. District Court action in the case began on Monday, January 30, 2017, when the Attorney General of Washington, joined eventually by the State of Minnesota, filed suit against President Trump, Secretary of Homeland Security John F. Kelly, and Secretary of State Rex Tillerson in the United States District Court for the Western District of the State of Washington, seeking to invalidate key sections or the Executive Order and enjoin the President and Secretary of Homeland Security from implementing them.
On Friday, February 3, 2017, after hearing oral arguments on the state of Washington’s plea for a nationwide temporary restraining order halting implementation of key provisions of the Executive Order, District Court Judge James L. Robart, an appointee of President George W. Bush, issued an order stopping the Administration from enforcing following five different provisions in the Executive Order.
White House Reaction. The White House reaction to the Appeals Court action was far more muted, at first, than its initial reaction was to the February 4th District Court ruling.
The president initially sent a single tweet within moments of the ruling stating (in all capital letters):
Neither the Appeals Court nor the District Court have actually ruled on the merits of the lawsuit challenging the Executive Order. Instead, both courts have ruled on whether to bar implementation of key aspects of the Executive Order while the courts are examining whether the Executive Order is constitutional and within the powers of the President of the United States. Both Courts have agreed to halt implementation while the Courts address the merits of the lawsuit.
Impact of Court Action. Four of the five aspects of the Executive Order that have been halted as a result of the District Court and Appeals Court rulings deal with the Executive Order’s provisions relating to the U.S. Refugee Admissions Program (USRAP). The fifth deals with the Executive Order’s 90-Day travel ban for citizens of seven majority-Muslim countries.
With respect to refugees, the District Court’s ruling prevents the President, for now, from halting the USRAP for 120 days; prevents him from indefinitely barring Syrian refugees from the United States; and prevents him from prioritizing religious minorities and deprioritizing religious majorities for admission to the U.S. as refugees. However, the ruling does not prevent the Administration from reducing the number of refugee admissions planned for the current fiscal year from 110,000, as previously planned, down to 50,000. And it does of prevent him from conducting the reviews or instituting new vetting procedures as called for in the executive order.
This means that the U.S. will be allowed to accept only about 16,000 more refugees this fiscal year, since it already has admitted over 33,000 since the year began on October 1, 2016.
With respect to the 90-day travel ban that is contained in the Executive Order for people with travel documents from Iran, Iraq, Libya, Somalia, Sudan, Yemen and Syria, the Court actions prevent the President, for now, from enforcing the ban.
The Appeals Court Action. Last week’s action in the Ninth Circuit Court of Appeals began on Monday, February 6, 2017, when the Federal Government and the states of Washington and Minnesota filed briefs with the Court. A three-judge panel consisting of Judge William C. Canby, an appointee of President Jimmy Carter; Richard R. Clifton, an appointee of President George W. Bush; and Michelle T. Friedland, an appointee of President Barack Obama; heard oral arguments in the case on Tuesday, February 7th. The panel ruled unanimously in favor of the States of Washington and Minnesota two days later, on Thursday, February 9th.
Late on Friday, February 10th, the Chief Judge of the Ninth Circuit Court of Appeals revealed that a judge on the Court had requested that a vote be held of the entire Court on whether the decision of the three-judge panel should be reheard by an en banc panel. The Chief Judge set a briefing schedule calling for the parties in the case to file briefs by Thursday, February 16th, providing their views on whether the case should be reheard en banc. Unless the judge who requested the vote withdraws his request, the full Court of Appeals will then vote after reviewing the briefs filed by the parties in the case on whether there should be an en banc rehearing of the case.
The District Court Action. District Court action in the case began on Monday, January 30, 2017, when the Attorney General of Washington, joined eventually by the State of Minnesota, filed suit against President Trump, Secretary of Homeland Security John F. Kelly, and Secretary of State Rex Tillerson in the United States District Court for the Western District of the State of Washington, seeking to invalidate key sections or the Executive Order and enjoin the President and Secretary of Homeland Security from implementing them.
On Friday, February 3, 2017, after hearing oral arguments on the state of Washington’s plea for a nationwide temporary restraining order halting implementation of key provisions of the Executive Order, District Court Judge James L. Robart, an appointee of President George W. Bush, issued an order stopping the Administration from enforcing following five different provisions in the Executive Order.
White House Reaction. The White House reaction to the Appeals Court action was far more muted, at first, than its initial reaction was to the February 4th District Court ruling.
The president initially sent a single tweet within moments of the ruling stating (in all capital letters):
| "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE. " |
Later in the evening, he gave an impromptu interview to several reporters in which he called the Court action “a political decision’ and asserted, ‘We have a situation where the security of our country is at stake, and it’s a very, very serious situation so we look forward as I just said to seeing them in court.”
White House press secretary Sean Spicer reacted to the ruling by saying he looks forward to a “full hearing on the merits of this case” and that the Administration feels “very confident that we’re going to prevail.”
Spicer told Breitbart News that evening, “We look forward to having a ruling on the merits, and we feel very, very confident on the president’s authority on this,” Continuing, he said, “As stated in U.S. code, the president has authority to make sure that the people who are coming into this country do so with the proper intentions.”
But by week’s end, the President had escalated his rhetoric, declaring that the decision by the Appeals Court was “a disgraceful decision” and that it was a “political decision.”
On Saturday, February 11th, the President took to Twitter to issue the following tweet criticizing the American legal system and warning about the nature of refugees who have come into the United States since the District Court TRO halted implementation of key portions of the refugee/travel ban executive order:
White House press secretary Sean Spicer reacted to the ruling by saying he looks forward to a “full hearing on the merits of this case” and that the Administration feels “very confident that we’re going to prevail.”
Spicer told Breitbart News that evening, “We look forward to having a ruling on the merits, and we feel very, very confident on the president’s authority on this,” Continuing, he said, “As stated in U.S. code, the president has authority to make sure that the people who are coming into this country do so with the proper intentions.”
But by week’s end, the President had escalated his rhetoric, declaring that the decision by the Appeals Court was “a disgraceful decision” and that it was a “political decision.”
On Saturday, February 11th, the President took to Twitter to issue the following tweet criticizing the American legal system and warning about the nature of refugees who have come into the United States since the District Court TRO halted implementation of key portions of the refugee/travel ban executive order:
| “Our legal system is broken! "77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries." (WT) SO DANGEROUS!” |
Key Legal Documents. The following contains links to key legal documents relating to the proceedings in the case:
Appeals Court Documents
District Court Documents
Next Steps. Judge Robart has set up a schedule calling for the next actions on the case to take place this week. He ordered the States of Washington and Minnesota to file a brief on their request for a preliminary injunction by Thursday, February 9th, the federal government to file its reply by Wednesday, February 15th, and the states of Washington and Minnesota to file their reply Friday, February 17th.
In the meantime, briefs from the two parties are due by midnight Thursday, February 16th, on the question of whether there should be an en banc rehearing of the case before a larger panel of the Ninth Circuit Court of Appeals.
The Trump Administration has the option of appealing the TRO to the Supreme Court of the United States, stopping its contest of the TRO and dealing with the merits of the case in the District Court, or withdrawing the Executive Order in its current form so it can issue a new or revised one that cures the flaws contained in the existing one.
Appeals Court Documents
- Audio of Appeals Court Proceedings (2/7/17)
- Order Denying Stay of TRO (2/9/17)
- Order Relating to en banc Reconsideration (2/9/17)
District Court Documents
- Executive Order (Filed 1/27/17)
- Original Complaint (Filed 1/30/17)
- Motion for Temporary Restraining Order (Filed 1/30/17)
- Amended Complaint (Filed 2/1/17)
- Pleading Regarding Standing (Filed 2/1/17)
- Defendants Response (2/2/17)
- Video of District Court Proceedings (2/3/17)
- Temporary Restraining Order (Filed 2/3/17)
- Defendants Notice of Appeal (2/4/17)
- Defendants Emergency Motion for Stay (2/4/17)
- Order Denying Immediate Stay (Filed 2/4/17)
- Revised Scheduling Order (2/5/2017).
Next Steps. Judge Robart has set up a schedule calling for the next actions on the case to take place this week. He ordered the States of Washington and Minnesota to file a brief on their request for a preliminary injunction by Thursday, February 9th, the federal government to file its reply by Wednesday, February 15th, and the states of Washington and Minnesota to file their reply Friday, February 17th.
In the meantime, briefs from the two parties are due by midnight Thursday, February 16th, on the question of whether there should be an en banc rehearing of the case before a larger panel of the Ninth Circuit Court of Appeals.
The Trump Administration has the option of appealing the TRO to the Supreme Court of the United States, stopping its contest of the TRO and dealing with the merits of the case in the District Court, or withdrawing the Executive Order in its current form so it can issue a new or revised one that cures the flaws contained in the existing one.