NINTH CIRCUIT COURT REJECTS IMPLEMENTION OF THE ADMINISTRATION’S EXECUTIVE ORDER
The Multifaith Alliance for Syrian Refugees (MFA) applauds the unanimous decision by the United States Court of Appeals for the Ninth Circuit, rejecting the Administration’s emergency appeal of a lower federal court decision which temporarily delayed implementation of significant parts of the Executive Order issued January 27, 2017. That order sought to ban travel from seven Muslim-majority countries for 90 days; halt the successful United States Refugee Admission Program for 120 days – and indefinitely for Syrian refugees. The resulting chaos worked to cancel hundreds of thousands of visas and to delay or return hundreds already arriving at U.S. airports. The decision by the 9th Circuit permits immigrants and refugees to travel under the terms and procedures of well-established law until the lower court can address the merits of the case. The decision is limited to the “stay” of the Executive Order, not yet to the underlying constitutional issues. The Administration is considering all of its legal options, including appealing this decision to a larger panel of the 9th Circuit; appealing it directly to the Supreme Court; letting it stand and return to the lower court for adjudication of the merits; or otherwise rewriting or rescinding the Executive Order.
There were a number of critical points made by the Ninth Circuit:
The Court carefully noted the impact of the ban and the issues present by lower court’s temporary restraining order – that is, that in addition to those stopped at entry points, "thousands of visas" had been cancelled due to the Executive Order, and that if upheld, the TRO would likely be in place for an extended period
The Court concluded that, in this situation, the states did have an interest in the ability of immigrants and refugees, including non-citizens, to enter the country—particularly noting impacts to the state universities and their students -- and therefore could bring the suits. This is a key finding that should reinforce the rights of states to continue to pursue legal challenges regarding immigration.
The Court rejected the government’s arguments that the Executive Order was not subject to judicial review because it was based on national security concerns, The Court noted that the judiciary owes deference to policy determinations by the executive branch. However, the courts clearly retain the authority to determine the constitutionality of such orders. Again, this is a critical ruling with regard to future challenges.
Without permanently deciding the merits of the case, the Court determined that the government was unlikely to prevail on the merits -- and that the states were likely to suffer the greater harm if the Executive Order was permitted to go back into effect.
Of critical importance, the Court ruled that the Executive Order likely did not satisfy due process rights, potentially including notice and a hearing before restricting or revoking the ability to travel and other liberty interests. The Court made clear that these rights extend to non-citizens, and those in the United States. Thus, subsequent “guidance” by the White House regarding “lawful permanent residents” neither provided adequate assurance of uniform relief for this subset of people affected by the Executive Order nor cure potential defects for others. The Court noted that it is not its role to rewrite the Order so as to remedy these failings.
Also of great significance, the Court looked beyond the words of the Executive Order itself, to consider statements made during the Presidential campaign and by the Administration, to find it likely that opponents could ultimately show that there was an unconstitutional discriminatory intent – a “Muslim ban.”
The Court’s ultimate conclusion was that in balancing the injuries, the states opposing the Executive Order were likely to suffer greater harm – that outweighed the government’s claims of threats to national security.
MFA believes that this was an important victory upholding the right to challenge the government’s authority when it threatens our most fundamental freedoms. WE CONTINUE TO URGE ALL THOSE IN A POSITION TO TRAVEL TO DO SO IMMEDIATELY – AND ASSUREDLY BEFORE ANY “CHECKS” IN THE VETTING PROCESS EXPIRE -- as the situation remains fluid.
MFA supports legislation that would nullify the Executive Order and prohibit federal funding for its implementation. We will continue to advocate on behalf of Syrian war victims and keep you informed with regard to these critical developments as challenges to the Executive Order wind their way through the courts and the Congress.