On Tuesday night, a panel of judges on the U.S. Court of Appeals for the 9th Circuit heard arguments in Washington state’s lawsuit against Donald Trump’s executive order on immigration. The panel consisted of two left-leaning judges and one moderately conservative judge; all three sharply questioned both Washington Solicitor General Noah G. Purcell and Justice Department attorney August E. Flentje. But by the end of the hour, it seemed Purcell had the upper hand: At least two judges seemed wary of reversing a lower court’s injunction against the travel ban and, as Purcell put it, throwing “the country back into chaos.” Here are five takeaways from the arguments.
1. Washington state probably has standing.
The Justice Department insists Washington has no right to sue on behalf of immigrants affected by the ban. No judge appeared receptive to that argument. Judge Michelle T. Friedland repeatedly pointed to Washington’s claim that it has “proprietary standing” because faculty and students at the state’s public universities are harmed by the executive order. Because these universities are organs of the state, Friedland suggested, the clear injury inflicted upon them—the fact that students and professors were stranded abroad, limiting their research and scholarship opportunities—confers standing upon Washington itself.
The judges were also appropriately skeptical of Flentje’s claim that the Supreme Court decision in Kerry v. Din helped the DOJ’s case. In Din, six justices agreed that an American citizen could sue the government for denying her spouse a visa. As I’ve written, this ruling cuts against the DOJ, because it means a citizen whose foreign spouse is injured by the government has standing to sue. This, in turn, suggests that a state whose immigrant residents are injured by the government also has standing to sue.
In the end, standing was not a notable concern for the judges. Washington will probably be allowed to move forward with the suit.
2. Trump doesn’t get to declare an executive order “unreviewable.”
In a series of tweets, Trump implied that the judiciary has no business reviewing the legality of his executive order. His Justice Department has echoed this argument in its briefs, stating that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”
The judges weren’t buying it.
At one point, Flentje asserted that the lower court judge’s ruling impermissibly “overrides the president’s national security judgment about the level of risk,” elaborating that “the president is the official that is charged with making those judgments.”
“So are you arguing, then, the president’s decision in that regard is unreviewable?” Friedland asked.
“Yes,” Flentje responded—then contradicted himself. “There are obviously constitutional limitations. But we are discussing the risk assessment.”
“What are the constitutional limitations that the government acknowledges?” Friedland followed up. Flentje conceded that the court could look at “a U.S. citizen’s constitutional claim,” but “even then,” the court could only look “at whether the decision is legitimate. The executive order here meets that standard easily.” But of course, it may not, because as Friedland noted, there have been “allegations of bad faith.”
Judge William Canby was similarly unconvinced by the DOJ’s argument that the federal judiciary has no business reviewing an executive order pertaining to national security. At the 9th Circuit, at least, the DOJ’s just-stay-out-it approach is a nonstarter.
3. Nobody is eager to reinstate the ban immediately.
Purcell began arguments with the upper hand in at least one respect: He was simply asking the court to stay the course. Because the lower court judge had stayed the executive order, he explained, the government is the party asking the 9th Circuit to “upset the status quo.”
“Things have slowly returned to normal,” Purcell said—that is, the normalcy that existed before Trump signed the order. But a ruling in favor of the government, he continued, would “upend the status quo again.”
Purcell did not receive much pushback on this point—not even from Judge Richard R. Clifton, a George W. Bush appointee who challenged Purcell’s other arguments. The judges are likely aware of the disarray, confusion, and lawlessness that the ban prompted, and none of them professed an appetite to return to that mayhem.
4. The Establishment Clause claim is probably Washington’s strongest—but it’s not a slam dunk.
Washington alleges that Trump’s executive order violates due process and equal protection rights protected by the Fifth Amendment, as well as the First Amendment’s Establishment Clause. (It also makes a statutory argument, alleging that Trump’s order exceeds the scope of congressional authorization; the panel was not enthusiastic about this narrow and knotty argument.) All three judges appeared most interested in the Establishment Clause argument and for good reason: The clause prohibits the government from officially preferring one religion over another. On multiple occasions, Trump and his advisers have stated a desire to implement a “Muslim ban” and to favor Christian refugees over Muslim ones.
But Clifton wasn’t convinced that the executive order actually discriminates against Muslims. He asked Purcell whether the court should limit its analysis to “the four corners of the instrument”—that is, the text of the order—thereby ignoring comments made by the executive. He also asked how the order could be a “Muslim ban” when it didn’t ban a majority of the world’s Muslims from entering the country. Purcell faltered a bit, explaining that “we’re not saying it is a complete ban on Muslims entering the country” but rather a ban on certain Muslims that discriminates against them because of their religion. Clifton was obviously unsatisfied with this answer.
Friedland asked whether the court should proceed to Washington’s equal protection claim if it agrees that the executive order ran afoul of the Establishment Clause. Purcell responded that the court could certainly decline to engage in equal protection analysis if it finds an Establishment Clause violation.
I think Purcell’s answer was a mistake. The Supreme Court’s equal protection decisions—particularly those written by Justice Anthony Kennedy, whose vote will be vital here—are very helpful to Washington. Kennedy’s rulings establish that when the government imposes a sweeping disadvantage that, in practice, principally harms one class of people, the breadth of that action may be evidence of “animus toward the class it affects.” That animus may render the government action unlawful, because “the Constitution’s guarantee of equality must at the very least mean that a bare … desire to harm a politically unpopular group cannot justify disparate treatment of that group.” Washington argued in its brief that Trump’s executive order is surely motivated by this kind of unconstitutional animus because it is both extraordinarily broad and primarily harms Muslims. The state should continue to push this argument on appeal, as it aligns neatly with Kennedy’s jurisprudence.
5. Trump’s comments about the executive order could hurt him.
Toward the end of arguments, Flentje mocked Washington’s assertion that the court should examine Trump’s statements, as reported by the media, in addition to the text of the order.
“It is extraordinary,” Flentje said, “for a court to enjoin the president’s national security determination based on newspaper articles.”
An audibly astonished Clifton, who had mostly helped Flintje up to that point, interrupted.
“You deny the statements attributed to then-candidate Trump and to his political advisers, and most recently Mr. Giuliani?” He asked incredulously. “You deny the statements were made?”
Flentje noted that the lower court judge “said he would not look at campaign statements,” but Clifton was not satisfied.
“That is a different point,” he said. “I mean, I understand the argument they should not be given much weight, but when you are saying we should not be looking at [them] …”
If even Clifton thinks the courts must look at Trump’s statements about the order, the government is in trouble. Clifton’s questions were generally favorable to the DOJ, but he seemed disturbed by the notion that courts must ignore the president’s comments about orders he has signed. And that, really, is where the fight ahead will focus. If courts are limited to analyzing the text of the order and nothing else, they may have a hard time inferring that it disfavors Muslims. If they can look to Trump’s comments about the order, however, they can easily conclude that its purpose was to discriminate against Muslims on the basis of their religion. All three judges on Tuesday’s panel appeared willing to consider Trump’s comments about the order in addition to the text itself. That is a heartening sign for Washington—and it should make the government very, very nervous.