9th Circuit Rejects Government's Emergency Stay Motion in State of Washington v. Trump

Alexander J. Segal's picture


On February 9, 2017, the United States Court of Appeals for the Ninth Circuit rendered a decision in State of Washington v. Trump, No. 17-35105 [PDF version]. The case regarded the U.S. government's appeal of the temporary restraining order (TRO) issued by the United States District Court for the Western District of Washington [PDF version] against parts of President Donald Trump's Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States” [PDF version] [see article]. In a per curium opinion (meaning that it was not signed by one of the three judges rendering the decision), the Ninth Circuit denied the Government's emergency motion for a stay of the TRO pending appeal.

In this article, I will briefly explain the Ninth Circuit's reasoning and what may happen next. Please see my companion blog to read my opinion of the decision [see blog].

Although the Ninth Circuit did not address the statute directly, the contested provisions of the Executive Order were generally issued under section 212(f) of the Immigration and Nationality Act (INA). Please see our full article to learn more about the statute [see article].

Opinion in State of Washington v. Trump

Jurisdiction over Stay Motion

Before deciding anything else, the Ninth Circuit had to determine whether it had jurisdiction over the Government's stay motion. Washington and Minnesota (henceforth “the States”) argued that the appeal was premature, because a TRO is not ordinarily appealable. However, the Ninth Circuit held in accord with its decision in Serv. Emps. Int'l Union v. Nat'l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010) [PDF version], that the TRO “possesses the qualities of a preliminary injunction.” Due to the nature of the TRO and the “extraordinary circumstances” of the case, the Ninth Circuit held that “the TRO should be considered to have the qualities of a reviewable preliminary injunction.” Therefore, the Ninth Circuit continued to address other issues.

Question of Standing

Next, the Ninth Circuit moved to consider whether the States had standing to bring suit against the United States Government. The government contended that the States lacked standing, and that the appeal of the TRO should be granted on that basis. Citing to the Supreme Court decision in Lujan v. Defs. Of Wildlife, 504 U.S. 560-61 (1992) [PDF version], the Ninth Circuit explained that in order to establish Article III standing, the plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely a favorable decision will redress the injury.” The Ninth Circuit found that the States had standing based on the claim that the Executive Order “causes a concrete and particularized injury to their public universities.” The specific reasoning was that the Executive Order would harm the state universities by preventing academics from the seven specified countries in the Executive Order from traveling to the United States for research, academic collaboration, or personal reasons. Furthermore, the Executive Order prevents students from the seven countries from traveling to the United States to engage in studies or to consider admitting potential students. The Ninth Circuit found that the States had “third party standing” to assert the rights of student, scholars, and faculty at state universities. Furthermore, the Ninth Circuit also held that schools have the right to assert the rights of their students, citing to, citing to Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) [PDF version] and multiple circuit decisions. Because the Ninth Circuit also held that granting the relief sought by the states would redress the injury to the States, the Ninth Circuit found that the States had Article III standing. Interestingly, the Ninth Circuit did not reach the District Court's finding that the States also had standing based on their roles as parens patriae of the residents living within their borders.

Authority to Review

Having determined that the States had standing to sue, the Ninth Circuit then addressed whether the district court had the authority to enjoin the Executive Order. The Ninth Circuit rejected the Government's claims that the district court lacked the authority to review the Executive Order. The Ninth Circuit cited to Boumediene v. Bush, 553 U.S. 723, 765 (2008) [PDF version], wherein the Supreme Court held that Congress and the Executive branch could eliminate federal court habeas corpus jurisdiction over enemy combatants.

The Government cited to Kleindienst v. Mandel, 408 U.S. 753 (1972) [PDF version], in arguing that the district court did not have authority to review a discretionary exercise of immigration authority by the Executive based on a “facially legitimate and bona fide reason.” However, the Ninth Circuit accused the Government of misrepresenting Mandel by omitting key passages, holding that Mandel applied to the lawsuits regarding the denial of an individual visa based on a congressionally enumerated statute to the particular facts of the visa application. The Ninth Circuit distinguished the challenge of the States in the instant litigation by noting that the challenge was to “the President's promulgation of sweeping immigration policy,” rather than to the denial of an individual visa application based on an enumerated congressional standard particular to the facts of a specific visa application.

The Ninth Circuit also found that the district court had authority to review notwithstanding the Government's national security claims. In addition to Boumediene, the Ninth Circuit cited to Aptheker v. Sec'y of State, 378 U.S. 500 (1964) [PDF version], Ex parte Endo, 323 U.S. 283 (1944) [PDF version], and Hamdi v. Rumsfeld, 542 U.S. 507 (2004) [PDF version].

The Ninth Circuit noted that courts owe “considerable deference” to the President's policy determinations with respect to both immigration and national security. However, the Ninth Circuit found nevertheless that the judiciary retained the authority to resolve constitutional challenges to executive action even in these areas.

Standard of Review

The Ninth Circuit explained that its decision whether to stay the TRO was based on the determination of following four questions (citing to Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) [PDF version]):

1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
2. Whether the applicant will be irreparably injured absent a stay;
3. Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
4. Where the public interest lies.

The first two factors pertain to the Government in this case, which was seeking the stay. The third factor referred to the States, seeking to defend the TRO. The fourth factor involved weighing the public interest in an outcome in favor of the Government and an outcome in favor of the States. The Ninth Circuit found that all four factors weighed against granting the Government's stay motion in the instant case. We will examine the Ninth Circuit's reasoning in the forthcoming subsections.

Likelihood of Success on Due Process Claim

The Ninth Circuit held that the Government failed to show that the Executive Order provided adequate Fifth Amendment due process protections to the people affected.

The States had argued that the Government violated the due process rights of various aliens in at least three different ways:

1. Sec. (3)(c) of the Executive Order denies reentry to certain lawful permanent residents (LPRs) and nonimmigrant visa-holders without constitutionally sufficient notice to respond;
2. Sec. (3)(c) prohibits certain LPRs and nonimmigrant visa-holders present in the United States from “exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter reentering in the United States”; and
3. Sec. 5 “contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.”

The Ninth Circuit took the position that the district court “held generally” that the States were likely to prevail on the basis of due process claims, “without discussion or offering analysis as to any specific alleged violation.” It is worth noting that a careful review of the TRO reveals that at no point did the district court rule that the States were likely to prevail on the merits of their due process claims.1 Rather, the district court decision offered no reasoning as to the grounds on which the States were likely to prevail.

The Ninth Circuit cited to Zadvydas v. Davis, 533 U.S. 678, 693 (2001) [PDF version], in holding that the due process clause applies to all persons within the United States. It also cited to Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) [PDF version], which held that certain aliens attempting to reenter the United States after traveling abroad have due process rights. Based on these precedents, the Ninth Circuit held that returning LPRs have constitutional due process rights. Furthermore, the Ninth Circuit rejected the Government's argument that the claims regarding LPRs had been mooted by the White House chief counsel's post-issuance guidance that the Executive Order does not apply to LPRs [see article].

Furthermore, the Ninth Circuit held that nonimmigrant visa-holders who have been in the United States but either temporarily departed or wished to temporarily depart, refugees, and visa applicants who have a relationship with a U.S. resident or an institution that may have rights to assert may have “potential claims” regarding due process rights. The Ninth Circuit also held that persons in the United States unlawfully may also have claims under Zadvydas. The Ninth Circuit relied on this analysis in declining to limit the scope of the TRO to LPRs.

The Ninth Circuit relied on Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015) [see article], aff'd by an equally divided Court, 136 S.Ct 2271 (2016) [see article], in declining to limit the geographic scope of the Executive Order.

Likelihood of Success-Religious Discrimination

The States argued that the Executive Order violated the Establishment and Equal Protection Clauses of the United States Constitution “because it was intended to disfavor Muslims.” To this effect, the States brought to bear statements from President Trump during the presidential campaign about intending to implement a “Muslim ban.” The States argued that the sections 5(b) and 5(e) of the Executive Order were intended to implement such a Muslim Ban. The Ninth Circuit cited to precedent that evidence of purpose besides the face of the challenged law can be considered in evaluating religious discrimination claims. To this effect, the Ninth Circuit referred to Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) [PDF version]; Larson v. Valente, 456 U.S. 228, 244 (1982) [PDF version]; and Village of Arlington Heights v. Metro Housing Dev. Corp., 439 U.S. 252, 266-68 (1977) [PDF version].

The Ninth Circuit stated that the States' religious discrimination claims were serious and presented significant constitutional questions. However, the Ninth Circuit reserved further consideration of the claims until the merits of the appeal have been fully briefed.

Balance of Hardships and the Public Interest

The Ninth Circuit held that the Government had failed to show that a stay was necessary to avoid irreparable injury. The Ninth Circuit cited to Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010) [PDF version], which held that “the Government's interest in combating terrorism is an urgent objective of the highest order.” However, the Ninth Circuit noted that the Government had provided no evidence that any alien from the seven countries designated in the Executive Order has perpetrated a terrorist attack in the United States. The Ninth Circuit also rejected the Government's claims that it suffered as a result of the TRO an irreparable institutional injury by erosion of the separation of powers because it may pursue its claims in further litigation. By contrast, the Ninth Circuit held that the States provided “ample evidence” that the reinstatement of the Executive Order, even temporarily, would cause substantial injury.

The Ninth Circuit rejected the Government's claim that the Executive Order's waiver provisions are a sufficient safety valve for “those who would suffer unnecessarily.” The Court noted that the Government “offered no explanation for how these provisions would function in practice.” Additionally, the Ninth Circuit noted that the Government did not explain how the waiver provisions would suffice to avoid causing irreparable injury to the States.

What Happens Next?

Shortly after the decision was issued, a judge on the Ninth Circuit who was not on the 3-judge panel that denied the government's stay made a sua sponte (of his or her own accord) request that the full Ninth Circuit vote on whether the order issued should be reconsidered en banc (before the entire court) [PDF version]. The Ninth Circuit requested briefing from the parties to be filed by February 16, 2017, as to whether the matter should be considered en banc.

The Government has multiple options as to how to proceed.2 It may seek an emergency stay from the Supreme Court with Justice Anthony Kennedy, which would require five of the eight justices to grant the stay. The Government may also seek a hearing before judgment, which would only require the vote of only four justices. The Government may also decline to do anything and instead file briefs on the merits of the case before the same three-judge panel of the Ninth Circuit.

Alternatively, the Trump Administration may opt to withdraw the Executive Order and replace it with an Executive Order that would be more likely to survive judicial scrutiny. One of the most obvious changes that the President could make in a revised Executive Order would be to explicitly exempt LPRs from its scope. Furthermore, the President could consider exempting certain other aliens from the scope of the order that drew concern from the district court and the Ninth Circuit.

It is unclear at this time which path the Trump Administration will take. There have been reports suggesting that it would withdraw the Executive Order and replace it with a modified or revamped one, and reports that the Administration is still considering endeavoring to take the matter to the Supreme Court. We will update the site with more news on this issue as it happens. Please see my blog on my opinion of the Ninth Circuit decision.


  1. Blackman, Josh, “Instant Analysis of Washington v. Trump,” joshblackman.com, (Feb. 9, 2017)
  2. See Blackman, Josh, “The Procedural Paths Forward in Washington v. Trump,” joshblackman.com, (Feb. 10, 2017)
9th Circuit Rejects Government's Emergency Stay Motion in State of Washington v. Trump