A three judge panel from the Ninth Circuit Court of Appeals refused to lift District Judge James Robart’s temporary restraining order (TRO) that blocks the Trump administration from implementing its temporary travel freeze. (See FAIR Legislative Update, Feb. 7, 2017) In a unanimous “per curiam” order, the appeals court denied the Justice Department’s (DOJ) request to reinstate the 90-day freeze on entry of individuals from countries that are hotbeds for terrorism and the 120-day freeze on refugee resettlement. (State of Washington v. Trump, Feb. 9, 2017 at 3) The three judges to rule against the Trump administration were William Canby (Carter appointee), Richard Clifton (George W. Bush appointee), and Michelle Friedland (Obama appointee).

In another blatant example of judicial activism, the Ninth Circuit essentially created new law to rule against the executive order. First, the court found that the states of Washington and Minnesota have standing (a requirement to bring a lawsuit) on the extraordinary basis that the state universities are “harmed” by the claim that some students and professors might be unable to attend the universities during the travel freeze. (Id. at 8-13) Ironically, buried in the middle of the 29-page decision the appeals’ court says, “Within our system, it is the role of the judiciary to interpret the law” as it then proceeds to legislate from the bench. (Id. at 14)

Outrageously, the judges determined that all non-citizens, including those who have no connection to the country, are entitled to constitutional protections. “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent,” the court wrote while citing cases that involved people already in the country. (Id. at 20-21)(internal quotations omitted) “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel,” the court wrote. (Id. at 19) The court’s reasoning is flawed for many reasons. While all persons within the U.S., including illegal aliens, are entitled to varying levels of due process based on their status, the executive order is merely canceling visas and excluding people before they enter. Thus, the Fifth Amendment’s Due Process Clause does not apply. Significantly, the court’s claim that illegal aliens have an unfettered “right to travel” is contrary to established law. For example, in a 2001 case a federal court ruled, “It would be curious indeed if the law gave illegal aliens a fundamental right to travel about this country when their mere presence here is a violation of federal law.” (John Doe No. 1 v. Georgia Dep’t of Pub. Safety, 147 F.Supp.2d 1369, 1373 (N.D. Ga. 2001))

Continuing its biased attack against the Trump administration, the Ninth Circuit essentially said the White House was lying that the executive order does not apply to LPRs. Shortly after the executive order was issued on January 27, the White House clarified that green card holders were not subject to the travel freeze. (See FAIR Legislative Update, Jan. 31, 2017) Despite this clear statement, the court wrote, “At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” (State of Washington v. Trump, Feb. 9, 2017 at 21) “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order,” the judges continued. (Id. at 22) “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” (Id.)(emphasis added)

Similar to Judge Robart’s ruling (which contained no legal analysis), the Ninth Circuit fails to even mention the relevant statute that clearly authorizes the travel freeze. Section 212(f) of the Immigration and Nationality Act (INA) states, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (INA § 212(f); 8 U.S.C. § 1182(f)) Unsurprisingly, the Ninth Circuit is the most overturned appellate court. For example, in 2012 the Supreme Court reversed 86 percent of the rulings it review from the Ninth Circuit. (See Fox News, Feb. 9, 2017)

President Trump and key Republican lawmakers blasted the Ninth Circuit’s politically motivated opinion. “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!,” Trump tweeted shortly after the ruling was announced. (President Trump’s Twitter) “’Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.’ A disgraceful decision!,” Trump added Friday morning in reference to the courts’ failure to mention INA Section 212(f). (Id.) Senator Tom Cotton (R-AK) declared, “President Trump’s order to temporarily pause the refugee program and travel from seven war-torn countries is plainly legal under the Constitution and our immigration laws. No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president.” (Cotton Press Release, Feb. 9, 2017) Congressman Trey Gowdy (R-SC), a former federal prosecutor, added, “No one familiar with the 9th Circuit Court of Appeals should be surprised at today’s ruling. The 9th Circuit has a well-earned reputation for being presumptively reversible.” (Gowdy Press Release, Feb. 9, 2017) “It seems clear to most of us – not on the 9th Circuit Court of Appeals – there is no right to come to this country for non-citizens of the United States.” (Id.)

Legal scholars agreed. Appearing on MSNBC’s “Hardball,” Harvard Law Professor Emeritus Alan Dershowitz—of O.J. Simpson murder trial fame—said, “Look, this is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.” (See Breitbart News, Feb. 9, 2017) Similarly, CNN Legal Analyst Paul Callan said on “AC360” that “what has surprised all the lawyers who have looked at this decision is that what the court said here is that the state of Washington, because it brings students into its universities, it brings customers into its restaurants, is the representative of virtually anybody across the world who’s not an American citizen…. Why would they have standing to appear in our federal court, and argue that the U.S. Constitution protects their rights? I think the court overreached.” (See Breitbart News, Feb. 9, 2017)

It is unclear how the Trump administration will respond. Generally, the administration has three procedural options: appeal to the Supreme Court; request an en banc hearing before the entire Ninth Circuit; or return to Judge Robart’s court to litigate the merits of the executive order’s legality. The DOJ said it is “reviewing the decision and considering its options.” (Law360, Feb. 9, 2017) During a Friday press conference with Japan’s prime minister, President Trump said “We are going to keep our country safe” and “will be doing something very rapidly having to do with additional security for our country.” (The Hill, Feb. 10, 2017) Citing unidentified sources, MSNBC’s Joe Scarborough claimed the White House is drafting a new executive order with “more specific language.”

In the meantime, national security continues to be at risk as individuals we cannot properly vet are admitted into the country while the travel freeze remains blocked. In fact, 77 percent of the 1,100 refugees resettled in the U.S. since Judge Robart’s ruling are from the seven countries named as hotbeds for terrorism. (Washington Times, Feb. 9, 2017)