This appeal is publicly available at
https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000860
It's on PACER, but Appellate Courts not well-supported at the best of times. It's marked FOR PUBLICATION , It's marked PER CURIUM . And it happens to be the unanimous decision of the 3-judge panel. Now freely available at
https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
Here are some highlights and snark.
Page 3: “Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Win for the States, but we knew that already. I will highlight excerpts which are meaningfully different than just "Win for the States"
Page 7: “We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction.”
Win for the WH
Page 9: “At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.” Win for the States
Pages 10-11: “Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order.” Win for the States
Footnote, Page 12: “The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors.” Win for the States
Footnote, Page 13: “The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as
parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.”
Punt.
Page 14: “Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.” Win for the States
Page 15: “The Government omits portions of the quoted language [from Kleindienst v. Mandel, 408 U.S. 753 (1972)] to imply that this standard governs judicial review of all executive exercises of immigration authority.”
Own goal by WH leads to another ...
Page 16: “The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s
promulgation of sweeping immigration policy.”
... Win for the States
Page 17: “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.” Win for the States
Page 18: “In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Win for the States
Pages 18-19: “Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” ... We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay.” Win for the States
Page 19: “We emphasize, however, that our analysis is a preliminary one. We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest.”
Win for the process and calmer heads.
Page 21: “The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States.” Win for the States
Good Guess.
