Deborah Neyens is an educator and attorney with a B.A. in political science and a J.D. from the University of Iowa.
On February 9, 2017, the Ninth Circuit Court of Appeals issued a ruling in the case of State of Washington v. Trump, and the internet exploded. People both for and against the Court's decision took to social media to spout off about what it meant and whether the court even had a right to rule on the matter.
Judging by the mind-boggling level of misinformation that was shared, it was clear to me that America needs a refresher course in civics and a primer in constitutional law. So, as an educator and attorney who has studied both political science and constitutional law, I’m here to help.
American Government 101
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Those words aren’t just the lyrics to a Schoolhouse Rock song: They are the Preamble of the Constitution and set forth the general purposes of the American system of government.
The Constitution is the supreme law of the United States. It establishes the three branches of federal government, gives them certain powers, and lays out the parameters within which their powers must be exercised. Those branches and their respective roles are as follows:
- The Legislative Branch (Congress): Makes the laws
- The Executive Branch (the President): Implements the laws
- The Judicial Branch (the Supreme Court and lower federal courts): Evaluates the laws
The role of the judiciary specifically is to interpret the meaning of laws, to apply the law to the facts of individual cases, and to determine if the laws themselves or the manner in which they are implemented violate the Constitution. If the judiciary decides that a law violates the Constitution, the law cannot be enforced.
The judicial branch has three levels. At the lowest level are the district courts, also known as trial courts. Legal cases typically start at this level, where the parties to a dispute provide evidence to support their respective positions and the court resolves the dispute by determining the facts and applying legal principles. All district court proceedings that are not criminal cases are subject to the Federal Rules of Civil Procedure, which establish the process that the courts and parties must follow throughout the entire case.
The next level is the Court of Appeals. If a party to a dispute is dissatisfied with how the case was resolved at the district court level, the party may appeal to the Court of Appeals in the region where the district court sits. The Court of Appeals doesn’t take new evidence; its job is to determine if the district court correctly applied the law to the facts that were presented during the lower court proceedings.
The Supreme Court is the highest court in the land. If a party to a dispute doesn’t like how the Court of Appeals ruled on the case, the party may ask the Supreme Court to review it by filing a petition for review. The Court will look at the materials presented in the petition for review and vote on whether to accept the case. Four Justices must vote yes for a case to be granted review. The Court will then ask the parties to submit written briefs and make oral arguments to support their positions. Like the Court of Appeals, the Supreme Court does not take new evidence. If a majority of Justices decides that the Court of Appeals incorrectly applied the law to the facts of the case, the Court of Appeals decision will be reversed. In the event of a tie, the Court of Appeals decision stands.
State of Washington v. Trump Dissected
With that quick refresher on how American government works, let’s now take a look at the case that is causing so much consternation.
At issue in State of Washington v. Trump is an executive order that President Trump issued on January 27 temporarily banning people from seven Muslin-majority countries and all refugees* from entering the United States.
(*A refugee is not the same as an “illegal immigrant,” more appropriately referred to as an undocumented immigrant. An undocumented immigrant is someone who chooses to resettle to the United States but who has not followed the established legal process for gaining residency. A refugee is someone who has been forced either to flee his or her home country or face persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion and is applying to the United States for political asylum.)
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An executive order is not a law, which – as we learned during our Civics refresher – is the role of Congress. Rather, the order was issued as an exercise of the President’s authority to implement and enforce existing immigration laws. Indeed, the specific law upon which the executive order relies gives the President broad power to suspend the entry of any class of aliens to the country if their admittance is deemed detrimental to the interests of the United States.
The question at the heart of State of Washington v. Trump is whether the President’s exercise of the power conferred to him by statute was invalid because it violated the Constitution. That issue was not decided by the Ninth Circuit’s ruling on the motion for emergency stay.
So What Was Decided?
After Trump issued the executive order, the States of Washington and Minnesota filed a lawsuit against the President, the Department of Homeland Security, and the Secretaries of State and of Homeland Security claiming that the order was an illegal exercise of executive branch power. Among other things, the States claimed that the order violated both the Due Process Clause of the Fifth Amendment** and the Establishment and Equal Protection Clauses of the First Amendment***. The States then filed a motion for a temporary restraining order (TRO), asking the district court to stop implementation of the executive order until the issue of its legality could be sorted out.
(**The Due Process Clause of the Fifth Amendment of the Constitution prohibits the government from depriving individuals of their life, liberty, or property without due process of the law. Due process includes such things as providing notice and an opportunity for a hearing before someone’s rights can be restricted.)
(***The Establishment Clause of the First Amendment prohibits laws that have a religious purpose or that prefer one religion over another. The Equal Protection Clause prohibits the government from discriminating against people on the basis of their religion.)
The Rules of Civil Procedure set out the process by which a TRO may be granted. A party seeking a TRO generally must meet the following elements:
- A likelihood that the party seeking the TRO will succeed on the merits of the case.
- A likelihood that the party requesting the TRO will be irreparably harmed if it is not granted.
- A showing that the irreparable harm to the moving party if the TRO is not granted outweighs the potential harm to the other party if the TRO is granted.
- A showing that the TRO is in the public interest.
In State of Washington v. Trump, the district court granted the TRO based on findings that the executive order was inflicting significant and ongoing harm on a substantial number of people and that the States likely would be able to prove that it was illegally issued in the first place.
Trump then asked the Ninth Circuit Court of Appeals to for an emergency stay of the district court’s order granting the TRO. A stay would have allowed the travel ban remain in effect while the court determined whether it was legal. While TROs generally are not appealable, in this case, the Court of Appeals said it would review the matter anyway.
On February 9, a three-member panel of the Ninth Circuit Court of Appeals issued a decision upholding the district court’s TRO. The keys points of the court’s decision are summarized as follows.
The Ninth Circuit Court of Appeals's Decision
- Trump argued that the States did not have standing to sue. The Court found that the States did have standing to sue because the executive order harmed their public universities by restricting faculty and students’ ability to travel for university-related or personal reasons.
- Trump argued that the executive order could not be reviewed by the judicial branch. The Court rejected that argument as having no basis in legal precedent and as being “contrary to the fundamental structure of our constitutional democracy.” (See American Government 101 above.)
- The Court found that the States likely would win on their claim that the executive order violated the due process rights of the Fifth Amendment. The Court also noted that the lawsuit raised serious allegations regarding First Amendment violations based on evidence of Trump’s own statements of his intent to issue a “Muslim ban,” but said it reserved its right to consider those claims at a later point in the proceedings after the parties had an opportunity to fully brief the issue.
- The Court further found that harm caused by the travel ban – which separated families and stranded residents abroad – outweighed the harm to the government by enforcing the district court’s order, which essentially put the country back in the same position it was before the executive order was issued. The Court noted that Trump presented no evidence of a national security threat that required immediate reinstatement of the ban.
The executive branch has a number of options now that the Ninth Circuit has denied the motion for an emergency stay:
- It could ask the Supreme Court to review the matter.
- It could ask a larger panel of judges from the Ninth Circuit to reconsider its request for an emergency stay.
- It could dismiss its appeal of the district court’s order and continue to litigate the case on the merits at the district court level. As noted above, the issue at the heart of the case is whether the executive order violates the Constitution.
- It could write a new executive order that corrects some of the due process issues that the Court found to be problematic.
In the meantime, refugees and people from the seven countries targeted by the executive order may continue to enter the country.
On March 8, 2017, Defendants-Appellants voluntarily moved to dismiss the appeal, and the court issued an order granting the motion and dismissing the appeal. The President then revoked the initial executive order and issued a new one with a revised travel ban. That second executive order is subject to ongoing legal challenges.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.