Thursday evening the United States Court of Appeals for the 9th Circuit issued a decision rejecting the government’s request to invalidate the District Court’s restraining order against Trump’s travel ban. One reason the government did not prevail at this particular proceeding is that the burden was on the government to prove that it was substantially likely to prevail on the merits and the 9th Circuit determined the government failed to meet that burden. While not a ruling on all the merits there are aspects of the decision very damaging to the government down the road.
1. Standing. The court found the states have standing, which had been a significant concern. The government can continue to argue it, because you can always contest standing, but that question is mostly resolved.
2. Reviewability of the Executive Order. The government argued the EO was beyond judicial review because the President has sole province over matters related to national security. The 9th Circuit body slammed this one stating “There is no precedence to support this unreviewability, which runs contrary to the structure of our Constitutional democracy.” Several pages of analysis with well supported citations follow that statement. While the Supreme Court can always rule differently, that resolves this question at the Court of Appeals and it did so against Trump. It’s his favorite twitter argument, and one of the favorites of his fans and lawyer too.
3. Scope of the Due Process Clause. One of the favorite arguments made by those supporting the Trump travel ban is that “only citizens have Constitutional rights.” The due process clause clearly states otherwise. In that regard the Court of Appeals again ruled quite clearly on the substance of that argument stating: “The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens. Rather they apply to all persons in the United States, including aliens, regardless of whether their presence here is lawful, unlawful or temporary. [citation to the Supreme Court]. These rights also apply to certain aliens attempting to reenter the United States after traveling abroad.” [citation to another Supreme Court case].
While the 9th Circuit’s ruling was not a full ruling on the merits, it nonetheless resolved the merits for a number of questions and it did so decisively against the President.