Highlights from the Ninth Circuit Court of Appeals opinion on the Muslim ban EO.

plaidadder:

You can download the whole opinion as a PDF here. I believe it will become a very important historical document. But since most of you won’t, let me give you some of the highlights.

Most important to those of us who aren’t lawyers or judges is Section IV, “Reviewability of the Executive Order.” This is where the Ninth Circuit judges respond to the Government’s argument that “the President has ‘unreviewable authority to suspend the admission of any class of aliens.’”

Yes. Team Buttercup made the argument that no court–including the Supreme Court–has any right to ‘review,’ i.e. determine the constitutionality of, any of the President’s decisions about letting non-citizens into the country. They straight up argued that the judicial branch has no authority over Buttercup’s immigration orders. Which would essentially mean that when it comes to immigration, the executive branch is essentially above the law and operating independently of the Constitution.

This is frightening. However, it’s also bullshit. And the Ninth Circuit told them so. Beautifully. Highlights, with emphasis mine:

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

“The Government cites Mandel for the proposition that ‘ “when the Executive exercises” immigration authority “on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.”’ The government omits portion of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.”

“Indeed, federal courts routinely review the constitutionality of–and even invalidate–actions taken by the executive to promote national security, and have done so even in times of conflict.”

“In short…it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

I’m also quite partial to section VIII, “The Balance of Hardships and the Public Interest,” where they respond to the Government’s argument that the order is necessary to protect national security. Highlights, emphasis mine: 

“Although we agree that ‘the Government’s interest in combating terrorism is an urgent objective of the highest order,’ …the Government has done little more than reiterate that fact.”

“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.”

From footnote 8, responding to the Government’s claim that the need for the EO is based on special secret information that they can’t enter into evidence: 

“But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.”

And of course, my favorite, Section IX, “Conclusion”:

“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”