The 9th Circuit ruling has limits, but it shows the power of judicial checks
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In a unanimous decision Thursday evening, the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit refused to lift the district court's stay of the President Trump’s executive order that imposed the travel ban on citizens of seven Muslim-majority countries.

It is important to recognize two limitations of the opinion. First, it will be appealed to the Supreme Court. Second, it is a decision with respect to a stay. It is not a final decision on the merits of the executive order. A court usually, but not always, decides the merits of a case against the government after the court stays the government action.

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The court addressed three issues: whether states have standing to obtain review of the order, whether a court has the power to review the order, and whether the order violates the due process rights of some of the 60,000 to 100,000 people who were precluded from entering the United States by the order. The court declined to address the question of whether the order violates anyone's interests in religious liberty.

 

The court held that states have standing to obtain review of the order and that the court has the power to review the order. Those holdings are important and are likely to survive in the Supreme Court.

As the judges emphasized during the oral argument, if the courts had no power to review the order or no one had standing to obtain review of the order, as the government argued, there would be no effective check on any order that bans any individual or group from entering the country.

Thus, for instance, even though a complete ban on entry by all Muslims clearly would violate the First Amendment of the Constitution, the courts would not be able to stop the president from issuing such a ban.

The court also held that the ban imposed in the order violates the due process rights of some of the people who were forbidden to enter the country. This part of the opinion will be more difficult to defend in the Supreme Court. There are weaknesses in the support of this holding.

In particular, the court ignores completely a century-old Supreme Court opinion that holds that due process does not apply when the government takes an action that deprives an entire class of people of a protected interest as opposed to a situation in which the government singles out individuals for adverse treatment.

No matter how the Supreme Court resolves the difficult question of whether the order is legally permissible, anyone who believes that it is important to have some potential judicial checks on the president's power to prohibit groups from entering the country has occasion to celebrate the court's holdings that courts have the power to review orders of this type and that states have standing to obtain review of such orders.

Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. His work has been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.


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