9th Circuit, Citing Education and Other Factors, Refuses to Reinstate Travel Ban

By Mark Walsh — February 09, 2017 3 min read
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A federal appeals court panel on Thursday declined the Trump administration’s request to reinstate its executive order temporarily barring U.S. entry for individuals from seven countries, citing disruption in higher education among other factors.

“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,” said the three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

The panel unanimously rejected the administration’s request for a stay of a federal district court’s temporary restraining order that enjoined enforcement of key sections of the Jan. 27 executive order signed by President Donald Trump.

Citing the potential for terrorism, the order barred for 90 days entry for those from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The two other blocked sections deal with refugees. The executive order created widespread disruption in immigration and was met with protests.

Washington state, joined by Minnesota, sued the Trump administration to block the order on due process and religious discrimination grounds.

The 9th Circuit’s Feb. 9 opinion, issued jointly by the three judges—William C. Canby, Richard R. Clifton, and Michelle T. Friedland—who held a telephone argument two days earlier, relies on the states’ arguments about the executive order’s impact on universities and foreign students for a key part of the ruling on whether they had standing to challenge the executive order.

“The interests of the states’ universities here are aligned with their students,” says the opinion in State of Washington v. Trump. “The students’ educational success is inextricably bound up in the universities’ capacity to teach them. And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the states may assert not only their own rights to the extent affected by the executive order but may also assert the rights of their students and faculty members.”

Besides the disruption to state universities that Washington and Minnesota emphasized, the president’s executive order has alarmed many in K-12 education, especially in communities with large numbers of refugees or immigrants from the countries cited in the order, as Education Week‘s Corey Mitchell and Francisco Vara-Orta reported last week.

A friend-of-the-court brief filed in the case on the states’ side by the American Immigration Council said, “this ban on travel into the country—effectively operating as a ban on travel out of the country—prevents students from seeing their families during school breaks and inhibits the ability of employees to do business on a global scale.”

The 9th Circuit court panel found that the states had a likelihood of prevailing on their claim that the three provisions of the executive order violated the constitutional guarantee of procedural due process.

“The procedural protections provided by the Fifth Amendment’s due-process clause are not limited to citizens,” the court said. “Rather, they apply to all ‘persons’ within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent. These rights also apply to certain aliens attempting to reenter the United States after travelling abroad.”

Trump reacted on Twitter soon after the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The U.S. Department of Justice issued a more measured statement, saying it was “reviewing the decision and considering its options.”

A version of this news article first appeared in The School Law Blog.