Trump Loses in 9th Circuit: No Stay of Lower Court Immigration Order

The 9th Circuit Court of Appeals rejected Donald Trump's request for an emergency stay of a lower court order blocking implementation of his Executive Order denying visas to persons from seven countries for 90 days as unconstitutional:

{W]e hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

You can read the 9th Circuit's ruling here. [More...]

Smackdown Trump:
[T]he Government has taken the position that the Presidentís decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

In short, although courts owe considerable deference to the Presidentís policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

The Government has 14 days to file a motion for reconsideration or reconsideration en banc today's order denying the motion for stay.

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    Trump tweets (5.00 / 1) (#1)
    by Towanda on Thu Feb 09, 2017 at 06:33:44 PM EST
    that he will take it to the SC, tweeting in ALL CAPS.


    What I wouldn't give to be (5.00 / 2) (#3)
    by Peter G on Thu Feb 09, 2017 at 07:03:37 PM EST
    a fly on the wall when the ignoramus-in-chief sits down with AG Sessions and Acting SG Francisco to discuss the prospect of the Supreme Court appeal.

    Perhaps if they file a motion with Justice Kennedy (5.00 / 3) (#7)
    by Peter G on Thu Feb 09, 2017 at 09:13:02 PM EST
    for an emergency stay, they will do so in all caps, so he understands the President* feels strongly about it.

    140 character Legal Briefs (none / 0) (#21)
    by Mr Natural on Fri Feb 10, 2017 at 09:14:07 AM EST
    will be quite a challenge to write

    The US Court of Appeals for the Third Circuit (none / 0) (#22)
    by Peter G on Fri Feb 10, 2017 at 09:19:00 AM EST
    has a new rule, that if your case is selected for oral argument, you must submit a 225-character (maximum) summary of the case and the issues for posting on their website, for the information of the press and public. I had one of those to do a couple of weeks ago. It was kind of fun, and definitely a challenge.

    He can attempt (none / 0) (#2)
    by Ga6thDem on Thu Feb 09, 2017 at 06:57:01 PM EST
    to take it to the supreme court but it would be foolish for him to do so from what I have read. This would probably be one of those cases the supreme court would decline to hear.

    What Tr*mp tweeted was (none / 0) (#4)
    by Peter G on Thu Feb 09, 2017 at 07:56:46 PM EST
    "SEE YOU IN COURT." Doesn't he realize that he (and the judges) are already "in court," and that court -- because federal judges respond to reasoned argument and not to intimidation or bullying -- does not appear to be a favorable forum for him? The issuance of the Ninth Circuit decision "per curiam" is itself an act of institutional solidarity, suggesting and emphasizing that the opinion is that of "the court" collectively and not the act of any judge as an individual. Is he channeling the ACLU here?

    Question (none / 0) (#5)
    by ding7777 on Thu Feb 09, 2017 at 08:49:48 PM EST
    The State Dept and DHS are still vetting new applications the way they did before the EO?

    The blocking of the ban does not mean there is no vetting going on, correct?



    As I understand it, that's correct (none / 0) (#6)
    by Peter G on Thu Feb 09, 2017 at 09:11:04 PM EST
    Status quo ante. Not aware that Tr*mp ever repealed the pre-existing program of intense (but apparently not "extreme") vetting.

    thanks (none / 0) (#8)
    by ding7777 on Thu Feb 09, 2017 at 09:20:28 PM EST
    Could T*ump also require applicants to give more information (extreme vetting?) via the pre-existing program thru normal administrative procedures?

    Dunno (none / 0) (#9)
    by Peter G on Thu Feb 09, 2017 at 09:37:58 PM EST
    I'm not an immigration lawyer. Don't know the technical details of the prior program.

    So YOU are responsible (none / 0) (#40)
    by Militarytracy on Fri Feb 10, 2017 at 07:13:13 PM EST
    For that meme ;)

    And now, as the WH backs off (5.00 / 1) (#34)
    by Towanda on Fri Feb 10, 2017 at 05:56:38 PM EST
    apparently, from SEEING US IN COURT, a clever tweeter clarifies the situation for us:

    So, to be clear: the ban that wasn't a ban until it was a ban was banned, and attempts to ban the ban of the ban have been disbanded.

    Actually (none / 0) (#38)
    by FlJoe on Fri Feb 10, 2017 at 07:00:44 PM EST
    ban wasn't even a thing until the lying press invented it to smear trump, alternatively speaking of course.

    The circular using of the word (5.00 / 1) (#39)
    by Militarytracy on Fri Feb 10, 2017 at 07:10:30 PM EST
    It's our word

    Also discussing Forum shopping (2.00 / 1) (#13)
    by TrevorBolder on Fri Feb 10, 2017 at 06:08:36 AM EST
    In Federal Court.
    How Republicans would bring up Obama's executive orders in Texas courts, looking for nationwide stays,
    As this particular order received nationwide stay from the 9th Circuit.

    ... it was the State of Washington itself which challenged Trump's executive order, and Washington is part of the 9th Circuit's jurisdiction. Nobody "forum-shopped."

    9th Circuit (none / 0) (#10)
    by TrevorBolder on Fri Feb 10, 2017 at 05:53:39 AM EST

    he Supreme Court rarely takes cases where a lower court was simply incorrect. There usually must be some other reason for the Supreme Court to take the case, such as to correct a difference in opinion between the courts of appeals, to resolve a question that has confused or misled lower courts, or sometimes just because the case is too important to ignore. Within these boundaries, it is generally easier to convince the Supreme Court that it should take a case when the court of appeals got it wrong. That means that in general, we ought to expect the Supreme Court to reverse more often than it affirms. But as Court-watchers know, even with these qualifications, the Ninth Circuit has a reputation as a magnet for the high court's negative attention. Although recent years have seen other circuits competing with the Ninth Circuit for the title of "Most Reversed," the Ninth still appears to hold the unquestioned title. The Ninth Circuit's best showing in recent years was October Term 2009, with a 60 percent reversal rate in the 15 cases on which certiorari was granted. The Sixth Circuit got the prize for highest reversal rate that year, with seven cases resulting in seven reversals, while the Seven Circuit came in a close second (91 percent reversal rate in eleven cases).   But in 2010, perhaps seeking to reclaim its position at the top of the heap, the Ninth Circuit was reversed a startling 19 times (79 percent), three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.

    More up to date stats   http://tinyurl.com/glbfxdb

    Possible legislation addressing the 9th

    According to Fox News, Arizona Senators Jeff Flake and John McCain have introduced legislation that will take six states out of the court, and create a whole new 12th Circuit. According to Flake, the court is overburdened, bloated, and slow.

    "It represents 20 percent of the population -- and 40 percent of the land mass is in that jurisdiction. It's just too big," Flake told Fox News on Wednesday. "We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the 9th Circuit, you just don't have it."

    Under Flake's bill, the new circuit would cover Nevada, Washington, Idaho, Montana, Arizona and Alaska, leaving the 9th with three Pacific states as well as the Northern Mariana Islands and Guam.

    These two things really have nothing (none / 0) (#23)
    by Peter G on Fri Feb 10, 2017 at 09:26:21 AM EST
    to do with each other. The stats on the Ninth Circuit's reversal rate at the Supreme Court are misleading, because so many of the cases underlying that trend are habeas corpus decisions on review of state-court criminal convictions and sentences, particularly capital habeas challenging Arizona and California death penalties. In those cases, it does seem to be true that the Ninth has resisted the Supreme Court's reactionary tendencies and has been frequently slapped down for it. If you control for that particular, important subclass of case, I doubt very much that the reversal rate is any different than for any other circuit. And besides, statistics like that do not predict the outcome of individual cases, each of which is unique.
        As for dividing the Ninth Circuit, that controversy has persisted for decades, and usually founders on some battle about environmentalism vs. corporate interests.

    Turley and Dershowitz this AM (none / 0) (#11)
    by TrevorBolder on Fri Feb 10, 2017 at 06:00:04 AM EST
    Both see this as a weak opinion from the 9th, with a likelihood of being overturned

    But Dershowitz also states,

    Just write a new Executive Order, clean up the language.

    That is , if it is a pressing national security issue, thus challenging the Donalds ego. The Donald would normally prefer to prove the 9th Circuit wrong, but if this is a pressing security issue, he should just re write the order.

    Who knows what The Donald may do.

    Those two (none / 0) (#12)
    by Ga6thDem on Fri Feb 10, 2017 at 06:02:42 AM EST
    seem to always be wrong lately. Most others seem to think that taking it to the supreme court would yet be another loss for Trump.

    Sounds like they (none / 0) (#14)
    by TrevorBolder on Fri Feb 10, 2017 at 06:09:21 AM EST
    Will redraft the Executive Order rather than take the time to fight this in the Supreme Court.

    I don't know (5.00 / 2) (#16)
    by Ga6thDem on Fri Feb 10, 2017 at 06:23:19 AM EST
    how a religion ban is ever going to pass constitutional muster. And likely the next one will be just as stupid as the one already written. He just wants the ability to harass people who have the wrong skin color and has nothing to do with anything else. The bronze medalist in fencing in the Olympics who is an American citizen was detained. You can continue to apologize for Trump all you want but his EOs have been nothing short of a policy and PR disaster.

    You are correct (2.00 / 1) (#17)
    by TrevorBolder on Fri Feb 10, 2017 at 06:27:39 AM EST
    how a religion ban is ever going to pass constitutional muster.

    Thats why a temporary travel ban , based upon countries having no system for us to verify individuals, and having been deemed a hotspot for terror by the prior administration, will stand.

    The bronze medalist in fencing in the Olympics who is an American citizen was detained.

    Were they granted entry?


    Sorry (3.00 / 1) (#19)
    by Ga6thDem on Fri Feb 10, 2017 at 07:29:57 AM EST
    but even that is not going to work. He needs to go back to Obama's policy of tightening requirements and not an outright ban. That will never hold water if you're not including places like Saudi Arabia on the "ban". He's not using sound reasoning on this stupid "ban" but then he doesn't use sound reasoning on anything.

    Do you ever get tired of twisting yourself into a pretzel apologizing for 45?


    Absolutely correct (5.00 / 1) (#28)
    by Peter G on Fri Feb 10, 2017 at 12:29:24 PM EST
    up to but not including the gratuitous personal insult in the last line. Why do that, GA6, and undermine the persuasiveness of your actual point?

    The Executive Order does not contain (none / 0) (#29)
    by Peter G on Fri Feb 10, 2017 at 12:33:54 PM EST
    a "religion ban." What it creates, and what makes it unconstitutional, is a religious preference - expressed in terms of "minority religion" over majority religion. If it favored those persecuted on account of their religion, that would be fine; in fact, international asylum law requires that. It's the express preference, among those otherwise similarly situated, on account of what religion they profess, that inflicts the fatal wound.

    What part of the Constitution (1.50 / 2) (#20)
    by jimakaPPJ on Fri Feb 10, 2017 at 08:51:30 AM EST
    prevents the President using religion as test to deny entry into the US?

    The only I can see is regarding the holding of federal office and that is Article VI

    3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States

    And do not mention "due process." I understand that Green Card holders, or anyone inside the US has "rights." But if due process is extended to non-citizens located outside the US doesn't that mean we have appointed ourselves policemen of the world and must act to defend everyone???


    Seriously, Jim, you are pretending not (5.00 / 2) (#24)
    by Peter G on Fri Feb 10, 2017 at 09:31:52 AM EST
    to understand the Establishment Clause of the First Amendment? Give us a break. If you have a serious comment, your conservative ("social liberal") perspective is often interesting. But if you are just channeling some talking point nonsense, you are wasting your own time and everyone else's.

    Yes Peter, I understand the Establishment Clause (none / 0) (#32)
    by jimakaPPJ on Fri Feb 10, 2017 at 05:15:47 PM EST
    and I think it applies to citizens and green card holders.

    But I do not believe any part of the Constitution applies to non citizens located outside the US.


    The Establishment Clause is a direct prohibition (none / 0) (#41)
    by Peter G on Fri Feb 10, 2017 at 09:57:38 PM EST
    on all governmental action favoring one religion over another. It is not, as written, a statement of what rights a "person" or a "citizen" or anyone else may have. Unlike the Fifth Amendment's due process clause ("to any person"), for example, or the Fourth Amendment protection (of "the people") against unreasonable searches and seizures, or Sixth Amendment rights of "the accused."

    omg!! (5.00 / 1) (#42)
    by linea on Fri Feb 10, 2017 at 10:37:43 PM EST
    it doesnt say, for example:

    "All inhabitants of the realm shall have the right to the free exercise of their religion."


    "The right of The People to the free exercise of religion shall not be infringed."

    instead of granting a right to citizens, it prohibits the government generically:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.



    Peter, the question remains (none / 0) (#51)
    by jimakaPPJ on Sat Feb 11, 2017 at 02:33:14 PM EST
    Does the Constitution apply to non US citizens in other counties?

    If it does, then we should have troops in a bunch of Islamic countries, starting with Saudi Arabia and Iran.


    It applies to Governmental action (5.00 / 3) (#52)
    by MKS on Sat Feb 11, 2017 at 02:37:52 PM EST
    The U.S. government has to act in accordance with the U.S. Constitution.

    What other countries do to their own citizens does not constitute action of the U.S. government.


    The Constitution applies to actions (5.00 / 2) (#53)
    by Peter G on Sat Feb 11, 2017 at 02:42:39 PM EST
    of the government of the United States. Some of the rights granted or recognized under the Constitution apply only to some people and not others, or in some circumstances and not others. As the Ninth Circuit's per curiam opinion clearly and directly addresses. And some things the government is simply not permitted to do, without regard to the question you keep asking, and which I have now tried to answer more than once.

    This isn't climate science (5.00 / 1) (#55)
    by jondee on Sat Feb 11, 2017 at 03:15:40 PM EST
    or evolutionary biology, Jim.

    The government can't discriminate against people based solely on their religion.


    Let's try this, Jim: (5.00 / 1) (#60)
    by Towanda on Sat Feb 11, 2017 at 09:16:18 PM EST
    It's not about who they are.

    It's about who we are.


    These subjects are thoughtfully addressed (none / 0) (#27)
    by Peter G on Fri Feb 10, 2017 at 12:18:05 PM EST
    in just a few pages each, by the Ninth Circuit panel. Did you try to read the opinion?

    You really do not know (none / 0) (#30)
    by Towanda on Fri Feb 10, 2017 at 12:39:22 PM EST
    how horrifying is your statement, from an American?

    The whole point (none / 0) (#26)
    by MKS on Fri Feb 10, 2017 at 10:11:21 AM EST
    of the travel ban is to prove to Trump's base he is taking it to the brown people.   It is not about National Security at all.

    The amount of "time" involved is (5.00 / 1) (#25)
    by Peter G on Fri Feb 10, 2017 at 09:33:03 AM EST
    not a factor at all. That's silly.

    SITE VIOLATOR (none / 0) (#18)
    by Nemi on Fri Feb 10, 2017 at 07:12:19 AM EST

    This is odd (none / 0) (#33)
    by TrevorBolder on Fri Feb 10, 2017 at 05:52:38 PM EST
    http://tinyurl.com/z8honxt  Twitter link

    But it is Buzzfeed

    BREAKING: 9th Circuit will be voting on whether to reconsider the 3-judge panel decision en banc.

    This seriously slows it all down (none / 0) (#35)
    by Towanda on Fri Feb 10, 2017 at 05:59:32 PM EST
    as I understand the process (from another law blog), as the en banc panel can take months.

    Which is why (none / 0) (#36)
    by TrevorBolder on Fri Feb 10, 2017 at 06:08:38 PM EST
    There is talk that the WH will issue a new  rewritten the Executive Order.

    And Probably (5.00 / 2) (#37)
    by FlJoe on Fri Feb 10, 2017 at 06:58:02 PM EST
    one after that. I expect Bannon will try and flood the zone, the goal is chaos not coherent policy

    Review of 9th circuit decision (none / 0) (#43)
    by TrevorBolder on Sat Feb 11, 2017 at 07:36:29 AM EST

    By David French

    by DAVID FRENCH    February 9, 2017 8:57 PM @DAVIDAFRENCH

    After the Ninth Circuit's dangerous precedent, the Trump administration needs to slow down and consider its next move. It's often said that bad facts make bad law. In the case of the Ninth Circuit's just-issued ruling continuing the nationwide injunction against Donald Trump's executive order pausing immigration from seven jihadist or jihad-torn countries, it's necessary to amend that saying. Bad facts combined with superheated politics can make terrible law.

    That (none / 0) (#44)
    by Ga6thDem on Sat Feb 11, 2017 at 08:01:22 AM EST
    article is so not based on any facts. Canadian citizens who are Muslims have been held up. It is in fact an order to harass people based on how they look or a religious litmus test. And Trump failed to include travel bans to the countries that actually have produced terrorists. This whole thing has been nothing but one big CF and a PR disaster for all conservatives. The better statement would be the ridiculous bed wetting mentality of conservatives leads to nothing but disaster here in the US and internationally.

    Much like Trump is having ICE have Hispanics show their papers which is another PR disaster it is all about ethnic cleansing in the US.


    PR disaster? (none / 0) (#46)
    by MKS on Sat Feb 11, 2017 at 10:25:18 AM EST
    Wish it were so. But I don't think so.  Trump is playing to his base.  They want to see the brown people thrown out.  

    And, the Courts?  Just liberal elitists.

    Let us watch this war on California that Trump will try to wage.  As so called WWC flyover country supposedly dislikes California.


    But (none / 0) (#47)
    by Ga6thDem on Sat Feb 11, 2017 at 11:14:03 AM EST
    that's his problem. He is playing to his base which is about 40% of the country. The majority of the country is against him. And yes, even in red states this kind of thing is not playing all that well. Don't forget in GA which is a red state Trump barely carried the state and lost GOP strongholds. The GOP ignores this kind of thing at their peril. Plus people who were not previously active have been activated. It's going to be interesting to see what happens over the next year.

    Yes, Georgia getting closer (5.00 / 1) (#54)
    by MKS on Sat Feb 11, 2017 at 02:54:13 PM EST
    One strategy for Dems is to focus on turning Arizona, Georgia and Texas, rather than Ohio, etc.

    I think (none / 0) (#49)
    by FlJoe on Sat Feb 11, 2017 at 11:33:41 AM EST
    you are missing the point, Trump/Bannon embrace all PR good, bad or ugly.

    Bannon specializes in the ugly, he does not care about Republicans or even Trump(his useful idiot IMO), he is a self proclaimed chaos agent who is quite willing to piss everyone off while he throws red meat to his nativist shock troops. Pleasing a majority, or even a plurality of the electorate is not part of the equation if you ask me.



    My point (none / 0) (#56)
    by Ga6thDem on Sat Feb 11, 2017 at 03:37:48 PM EST
    is more of a big picture kind of thing. Yes, the fact that he only has his base with him is perfectly fine with him and Bannon. I would have thought there would be a few Republicans who had enough self preservation sense to go against Trump. So the citizens are just going to have to take it out on the GOP at the polls in 2018

    Correct (none / 0) (#48)
    by FlJoe on Sat Feb 11, 2017 at 11:15:27 AM EST
    the cruelty is a feature, not a bug and it is escalating.

    Trump got smacked down on his EO so I fully expect him to lash out against the undocumented, where he has the law if not morality on his side.

    As long as he has Bannon and the base on his side, and the craven Republican to cowed to oppose him, he probably try to fulfill his original promise to deport them all.


    Actually the article (none / 0) (#57)
    by TrevorBolder on Sat Feb 11, 2017 at 07:35:59 PM EST
    Is spot on.

    Actually, it's nothing more (none / 0) (#61)
    by Yman on Mon Feb 13, 2017 at 06:32:01 AM EST
    ... than an opinion from the National Review that you like.

    At (none / 0) (#45)
    by FlJoe on Sat Feb 11, 2017 at 08:44:11 AM EST
    least he didn't call them alternative facts,
    Bad facts combined with superheated politics can make terrible law.
     but he did help heat up the politics by making sure he mentions jihadism multiple times.

    He twists the arguments away from legal issues and folds it into the never ending GWOT

    The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are "potential claims" regarding "possible due process rights" even of illegal aliens? That's not deference. Moreover, if you actually follow the cited legal authorities, you'll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this "authority" to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishng.

    Pure jingoism, recycled from the Cheney administration. Astonishing all right.


    The government filings and lawyers had no facts (none / 0) (#50)
    by Green26 on Sat Feb 11, 2017 at 12:37:42 PM EST
    Didn't even have enough preparation to cite alternative facts. Sorry, judge, we don't have a clue whether there are any real or alternative facts to back up portions of our executive order. Ha.

    L.A. Times cartoonist David Horsey ... (none / 0) (#58)
    by Donald from Hawaii on Sat Feb 11, 2017 at 08:41:55 PM EST
    ... notes that while Trump is eager to build a wall along the Mexican border to block immigration, he's run into wall himself. It's called the West Coast, where one in six Americans reside and most of them are hostile to the Trump agenda.

    Of course, there is already. Wall at the (none / 0) (#59)
    by oculus on Sat Feb 11, 2017 at 09:09:26 PM EST
    border south of San Diego.