The Travel Ban and the Ninth Circuit's Holding in State of Washington v. Trump

• Publication year: 2017
• Author: By Joshua M. Surowitz, Eric P. Husby and Raquel S. Vasquez*

The Travel Ban and the Ninth Circuit's Holding in State of Washington v. Trump

By Joshua M. Surowitz, Eric P. Husby and Raquel S. Vasquez*

For immigration attorneys practicing in California as well as those practicing nationally, 2017 has been a year of promised, if not ambiguous, change by the new presidential administration. These promised changes have also been a time of uncertainty for practitioners and their clients.

Donald Trump promised sweeping changes to the immigration policies of his predecessor, ranging from attitudes concerning how to deal with the some 800,000 undocumented young people offered the protection of deferred action by the Obama Administration, to evaluating the benefit and continuing availability of visas for foreign professional workers in the United States, and to figuring out how to address the great challenge of keeping American citizens safe from those who mean us harm.

On the matter of national security and terrorism, during the 2016 presidential campaign and prior to becoming President of the United States, Donald Trump famously and expressly called for "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on."¹ However, his commitment to a ban on the basis of religion seemed to wax and wane in later statements both before and after the November election.²

Since assuming his role as President in January, he has twice, as of this writing, attempted to implement restrictions on the admission of foreign nationals from several predominately Muslim countries to the United States. ³ It is the first attempted travel ban and resulting litigation, that is the subject of this article, though the second and potential subsequent bans are being further litigated.⁴

The first travel ban had three primary functions: 1) cease all visa issuance and admission into the United States for nationals of seven affected countries— Libya, Somalia, Sudan, Iran, Iraq, Yemen and Syria—for ninety days; 2) suspend refugee admissions from all countries for four months; and 3) indefinitely suspend refugee admissions from Syria.⁵

As justification for the travel ban, the President invoked both the authority granted by Congress to the executive branch in the area of immigration, and the concerns of national security.⁶ In its Emergency Motion to the Ninth Circuit Court of Appeals, the Administration asserted that:

Judicial second-guessing of the President's determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration.⁷

Both of the travel ban attempts to date have been enjoined by the federal courts, and while the current President's acrimonious clash with the federal judiciary has been widely reported,⁸ the debate regarding the reach of executive authority within the context of immigration is not new. National security has historically been cited in efforts to support executive powers, at times targeting both citizens and non-citizens.

Moreover, an interesting aspect of the Ninth Circuit holding in State of Washington v. Trump, was the relevance attributed to outside actions and statements of the President and his associates beyond the official proffered justification by the Administration's counsel.⁹ Indeed, in determining the intent and nature of the "ban," the court relied on the President's own statements, including those emanating from his voraciously followed official Twitter account. More recently, while his Administration and counsel continue to maintain and defend that the executive order is not a "ban," the President contradicted their assertion of the same by recently tweeting, "I am calling it what we need and what it is, a travel ban!"¹⁰ The President's tweet came in response to the terrorist attack in London on June 5, 2017, when he also tweeted, "[w] e need to be smart, vigilant, and tough.... We need the Travel Ban as an extra level of safety!"¹¹ and "[t] he Justice Department should have stayed with the original Travel Ban, not the watered down, politically correct version that was submitted to the S.C."¹² These statements seem to lend credence to that the President may indeed be seeking a "travel ban" for certain groups of people in spite of the official explanations given by his administration to the contrary.

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On the other hand, in defense of the Administration's assertion that the President's earlier statements—such as those made during the campaign—were not reflective of their current objectives, the President has on other points indeed enacted immigration policies that cut squarely against some of his clearest policy proposals and campaign promises. For example, on the campaign trail and on his official campaign website, he referred to the Deferred Action for Childhood Arrivals (DACA) program—meant to temporarily suspend the deportation of young adults brought to the U.S. illegally as children while also allowing them temporary permission to work—as an "illegal amnesty" that he would end "on day one."¹³ Since entering office, however, the President has taken a vastly different and softer approach to the program, stating that DACA holders "can rest easy" as his immigration policies would target criminals, not them.¹⁴ President Trump categorized DACA holders as being "a case of heart."¹⁵ Recent numbers released by United States Citizenship and Immigration Services (USCIS) indicate that 17,000 new DACA holders were approved in the first three months of this year, further evidencing President Trump's softer stance with regard to the program.¹⁶ On June 15, 2017, the Department of Homeland Security announced that while the Administration was nixing the never-implemented Deferred Action for Parents of Americans (DAPA) program, DACA would remain in effect.¹⁷ However, on September 5, 2017 President Trump rescinded DACA, giving it a six month phasing out period.¹⁸ Nevertheless, shortly thereafter and in the days since his announcement, President Trump has appeared to indeed support legislation that would benefit "Dreamers."¹⁹ Although DACA is not a permanent normalization of status, President Trump's ultimate refusal to end the program he had promised to immediately terminate, surely indicates he is willing to change his actions on some of his biggest campaign promises.

Because of the front-and-center role immigration policy has taken with this Administration, the Ninth Circuit holding in State of Washington v. Trump has resounded to both supporters and opponents of the President's immigration policy as a key clue as to how the President's bolder policy proposals may be received by other branches of government. As such, though this matter presents many dimensions, this article focuses on selected case law supporting findings on three central issues addressed by the Ninth Circuit Court in State of Washington v. Trump: I) judicial reviewability in the context of executive immigration orders when security issues are present; II) the executive's authority to ban groups of persons with no individual assessment; and III) applicability of actual and valid concerns with respect to the executive's authority in immigration and security matters.

I. JUDICIAL REVIEWABILITY IN THE

CONTEXT OF EXECUTIVE IMMIGRATION ORDERS WHEN NATIONAL SECURITY ISSUES ARE PRESENT

In State of Washington v. Trump, the Administration argued for a stay of the temporary injunction granted before the Ninth Circuit regarding the travel ban. Central amongst the arguments presented by the Administration was that the district court did not have jurisdiction over the executive order because the President's decisions regarding immigration, when motivated by national security concerns, are unreviewable—even if constitutional rights are implicated. Though the Court acknowledged there is great deference owed to the executive and legislative branches with regard to national security and immigration, they also determined that there is no precedent establishing that these topics are unreviewable.²⁰

In denying the Administration's motion for a stay of the executive order, in State of Washington v. Trump, the Ninth Circuit Court rebuked the argument of judicial nonreviewability, applying case law spanning the World Wars, the Cold War struggle with communism, and the beginnings of the global war on terror. In applying these cases, the Ninth Circuit demonstrated that this present situation, while tinged with the substantial threat of terrorism, is not unlike earlier eras during which the courts did not abandon their judicial role in the face of executive action...