I have listened to the oral argument today in the Ninth Circuit regarding the stay of President Trump’s executive order on immigration. My brief takeaway is that Donald Trump may — may! — have talked his way into legal trouble with this one.
First, a couple of preliminary issues, before we get to the merits:
Standing — It sounds to me as though there are not two votes for standing based on parens patriae doctrine, but there are likely at least two (possibly three) votes for standing based on the states’ proprietary interests.
Scope of the order — A lot of time was spent (and possibly wasted) discussing whether the court was going to treat the District Court’s order as a TRO (temporary restraining order), as the District Court characterized it, or as a preliminary injunction, due to the length of the stay already ordered. This probably is not too significant an issue, but may have some relevance as to the length of the injunction if it is left in place. I think the Court may treat it as a preliminary injunction and write what they called a “reasoned opinion” so this can be taken to the Supreme Court with a full legal analysis in place for review.
Merits — So will the stay remain in place or not?
I’m not sure, but I think it will.
My impression is that Judge Canby, the Carter appointee, is going to vote to uphold the TRO.
Judge Clifton, the Bush appointee, sounds ready to vacate the stay as written, but perhaps let a modified stay remain in place as to lawful permanent residents. (More about that below.) His argument — and it was a pretty good one, I thought — was that you can’t really call this a Muslim ban when it affects maybe 15% of the Muslim population in the world. Meanwhile, he notes, there clearly are legitimate reasons to worry about these countries.
If I’m right, that leaves Judge Friedland, the Obama appointee, as the swing vote. She was not as easy to read as the other two judges, but to my ears, she was troubled by the evidence presented by the states about the President’s intent — based on his oft-stated declaration that he was going to institute a “Muslim ban.” If I had to bet, I’d say that evidence is going to carry the day for Judge Friedland. I wouldn’t lay a lot of money down on that bet — but that’s how I’d bet.
I often hear people say: “Who cares what Trump says? What matters is what he does!” As Donald Trump might say: Wrong! This case is a stark reminder that what the President says always matters. It matters to dissidents in countries run by totalitarian dictators. It matters to those dictators themselves, as they assess how far they can push the envelope. It matters to the stock market, which jumps like a golfer with the yips any time Trump puts a company name in a tweet.
And, as this case shows, it may matter to the safety of our country. Because, even if the order is necessary to the security of our country, if the yutz went around making it sound as if he was prejudiced against Muslims — and he did — those very statements could jeopardize the legality of the order.
Donald Trump’s mouth isn’t something we can all be entertained by, without consequence. He needs to get it under control. And, of course, he won’t. Ever.
So. Four years of this.
Finally, I think even Judge Clifton, the Bush appointee, was troubled by the fact that the order, on its face, applies to lawful permanent residents (LPRs). Sure, the White House counsel has told us since that it doesn’t — but the administration has said multiple different things about this, and the order as written still arguably applies to LPRs. I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs. This is an indictment of the chaotic manner in which the order was rolled out — but we already knew that.
P.S. The Court briefly discussed the interplay between sections 1152 and 1182(f) that I have debated with Andrew McCarthy — but showed little interest in the argument, primarily because (as I have always acknowledged) that argument doesn’t affect the treatment of refugees and other temporary visitors. Therefore, it does not allow the court to avoid the greater issues such as religious discrimination, that can be claimed by refugees and temporary visitors. Consequently, I expect this issue to be barely mentioned, if at all, in the final opinion.