State Of Play: This Is What’s Happening On Trump’s Refugee Order

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Kevin Daley Supreme Court correspondent
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The 9th U.S. Circuit Court of Appeals will consider a challenge to a lower court order halting implementation of President Donald Trump’s executive order on refugees this week.

The president issued the executive order on Friday Jan. 27. U.S. District Judge James Robart, a George W. Bush appointee, issued a nation-wide ban, called a Temporary Restraining Order (TRO), on certain provisions of the order on Friday Feb. 3. In the waning hours of Saturday the 4th, the U.S. Department of Justice appealed Robart’s ruling to the 9th U.S. Circuit Court of Appeals. Acting Solicitor General Noel Francisco asked the court for an immediate administrative stay of Robart’s TRO, pending further appeal.

The 9th Circuit declined to issue an immediate stay on Sunday Feb. 5. The court ordered the state of Washington to produce a reply to the government’s motion by Sunday night, and for the government to issue a counter-reply by Monday night. Shortly after the government filed its counter-reply, the 9th Circuit announced they would hear oral arguments on the matter on Tuesday afternoon. The court will then make a final decision about staying Robart’s ruling on Wednesday or Thursday of this week.

The Questions Before the 9th Circuit

There are three important points to make before considering the question before the 9th Circuit.

First, it’s important to understand that, at this stage, the courts are not evaluating the order on the merits — that is, they are not considering whether the president has the statutory and constitutional authority to issue the refugee order. Rather, they are deciding whether the order shall remain in effect as the courts assess its lawfulness.

Second, the 9th Circuit will first have to wrestle with a tricky jurisdictional question. As a general matter, TROs are not appealable. As such, it’s possible the court could simply conclude that it does not have authority to review Robart’s order and allow the TRO to stand. However, as professor Rick Hasen of UC Irvine School of Law points out, the 9th Circuit has previously provided that TROs may be reviewed by an appeals court in certain circumstances.

Third, there is an additional challenge for the 9th Circuit. In order to issue a TRO in the first place, a court must determine (among other things) if the party seeking the order is likely to succeed on the merits — that is that there statutory or constitutional challenge to the order is likely to succeed. Alternatively, the court could use a different test, and evaluate (again, among other things) if serious questions about the merits are raised, and a party is likely to be substantially harmed unless the court intervenes.

Robart determined that Washington’s challenge passed both tests, but did not indicate which statutory or constitutional issues he believed the order imperiled. As professor Josh Blackman of South Texas College of Law explains, this makes the 9th Circuit’s task especially thorny.

“What makes this question difficult is that Judge Robart did not explain the basis for his ruling,” he told The Daily Caller News Foundation. “Is it Due Process? Equal Protection? Establishment Clause? Free Exercise Clause? Who knows. The 9th Circuit would have to address each ground to determine if there is some basis to uphold it.”

With those three important caveats, the basic questions before the 9th Circuit is this: is the U.S. government likely to prevail in its defense of the executive order? Will the government suffer “irreparable injury” if Robart’s order isn’t overturned? And is reinstating the order in the public interest? If the answer to those questions is yes, Robart’s order will be overturned. If the answer is no, Robart’s order will stand pending further action.

The Status of the Order

As of this writing, the following provisions of the executive order are not in effect:

Section 3(c), which forbids migrants from the seven countries named in the order from entering the United States for 90 days.

Section 5(a), which suspends the U.S. Refugee Admissions Program (USRAP) for 120 days.

Section 5(b), which prioritizes the applications of religious minorities when the USRAP program is reinstated.

Section 5(c), which prohibits the entry of Syrian refugees through the USRAP program.

Section 5(e), specifically as regards the provision prioritizing the refugee claims of religious minorities.

Other Notes

Despite a compressed schedule, several advocacy groups have filed amicus (or friend-of-the-court) briefs urging the 9th Circuit to uphold Robart’s order. These groups include the ACLU, the Korematsu Institute, Americans United for Separation of Church and State, the Southern Poverty Law Center, HIAS Inc., a pro-refugee outfit, and a group of law professors. A coalition of tech giants has also filed an amicus brief urging the court to side with the states.

Hawaii has also filed a motion to intervene in the case in support of Washington and Minnesota. The state is represented by Neal Katyal of Hogan Lovells. Katyal, a veteran Supreme Court advocate, previously served as solicitor general in the Obama administration.

Regardless of the outcome, the losing party is almost certain to appeal to the Supreme Court.

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