March 16, 2017
Gibson Dunn previously issued several client alerts regarding President Trump’s January 27, 2017 and March 6, 2017 Executive Orders restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes.
This alert addresses the impact of two federal district court rulings temporarily blocking the federal government from implementing the Executive Order’s travel ban and changes to the refugee program, both scheduled to go into effect at 12:01 AM ET on March 16.
Judge Derrick K. Watson of the District of Hawaii entered a nationwide temporary restraining order (TRO) on the evening of March 15, hours before the Executive Order was scheduled to take effect. The court concluded that both the travel ban (Section 2), and the modifications to the refugee program (Section 6) likely violated the Establishment Clause. Accordingly it blocked the federal government from enforcing or implementing either provision. The ruling came after a hearing earlier in the day in a case brought by the state of Hawaii and a private plaintiff.
Standing for Establishment Clause Claim. The court found that the state of Hawaii had standing stemming from the Order’s effects on the state university system and the state’s tourism economy. First, the court that students and faculty would be deterred from studying or teaching at the state institutions, that the state will lose tuition from students no longer able to enter the country, and that the state will suffer damage to the "collaborative exchange of ideas among people of different religions and national backgrounds." Slip op. 17-19. These injuries were "nearly indistinguishable" from those found sufficient by the Ninth Circuit in the States of Washington and Minnesota’s challenge to the January Order. Slip op. 19. Second, it found sufficient evidence that the travel ban would negatively impact tourism, the state’s "main economic driver." Slip op. 20. The court also found that the individual plaintiff, an American citizen of Egyptian descent, had standing based on the likelihood that his mother-in-law would be unable to enter the country and the discriminatory impact of the travel ban. Slip op. 23-25.
Likelihood of Success on Establishment Clause Claim. Next, the court concluded that the plaintiffs were likely to succeed on the merits of their Establishment Clause claim because the Executive Order did not have a "primary secular purpose." Slip op. 29. The court rejected the federal government’s contentions that the order was not religiously motivated because it only targeted Muslims in six majority-Muslim countries, and that it could not consider material outside the four corners of the Order itself to assess motive. Slip op. 30-32. Focusing on a series of statements by President Trump and his advisors during the presidential campaign and since taking office, the court found a "unique record" of "significant and unrebutted evidence of a religious animus driving the promulgation" of both the January order and the new March Order. Slip op. 33; see id. at 33-36. The court acknowledged it was generally inappropriate to undertake what the federal government called a "judicial psychoanalysis of a drafter’s heart of hearts," but explained that the "remarkable facts at issue here require no such impermissible inquiry" because there was nothing "veiled" or "secret" about the statements it considered. Slip op. 34-35. On that basis, it enjoined both the travel ban and the refugee program provisions.
Other Claims Not Reached. The district court did not reach the plaintiffs’ arguments that the March Order also violated the Due Process Clause and the Immigration and Nationality Act’s prohibition on nationality-based discrimination.
Hours after the Hawaii ruling, Judge Theodore R. Chuang of the District of Maryland issued a separate nationwide preliminary injunction in International Refugee Assistance Project v. Trump, a class action brought by several non-profit organizations on behalf of themselves and several individual plaintiffs. This order enjoined the travel ban (Section 3), but declined to enjoin the refugee provisions (Section 6), or the Order as a whole.
Standing for Establishment Clause and Statutory Claims. Like the Hawaii court, the Maryland court found the individual plaintiffs had sufficient standing to bring an Establishment Clause due to the "fear, anxiety, and insecurity" they claimed was caused by the Executive Order. Slip op. 17. It also found standing for the individual plaintiffs’ claim that the Order violated the Immigration and Nationality Act, relying on a series of decisions that have "reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of a foreigner challenging the application of the immigration laws to that foreign individual." Slip op. 13. It did not reach the question of the organizations’ standing.
Likelihood of Success on Challenges to Travel Ban. The Maryland court found the plaintiffs had a likelihood of succeeding in their claim that the Order violated the Establishment Clause and the Immigration and Nationality Act. In an analysis similar to that of the Hawaii court, the Maryland court rejected the argument that officials’ public statements and the context of the Order should not be considered. Slip op. 32-33. It proceeded with an analysis of the President and other officials’ past statements, including those specifically addressing the new Executive Order, as well as the process by which both Executive Orders were promulgated. Slip op. 26-31, 35. The court concluded that "[i]n this highly unique case, the record provides strong indications that the national security purpose is not the primarily purpose for the travel ban." Slip op. 35.
The court also found a likelihood of success on the statutory (INA) claim, but only as to immigrant visas. Slip op. 24-25.
Other Claims. The district court found that the challenge to the refugee provisions was "not sufficiently develop[ed]" to justify relief, and relatedly that there was no basis for enjoining the Order in its entirety. Slip op. 41. Like the Hawaii court, it specifically declined to reach the argument that the Order also violated the Due Process clause. Id.
Immediate Appellate Review. The federal government has said it will review of the district court orders by the relevant courts of appeal–the Fourth Circuit for the Maryland order, and the Ninth Circuit for the Hawaii order. That was the route pursued (unsuccessfully) with the Western District of Washington TRO blocking implementation of parts of the January Executive Order. Such requests would initially be heard by a three-judge panel, with potential further review by the en banc courts of appeals, and ultimately by the Supreme Court.
Shortly after the Hawaii ruling, President Trump told attendees at a rally in Nashville, Tennessee that "[w]e’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court." At the press briefing on March 16, White House Press Secretary Sean Spicer said that the federal government "intend[s] to appeal the flawed rulings," and "expect[s] action to [be] taken soon to appeal the ruling in the Fourth Circuit and to seek clarification of the order prior to appeal in the Ninth Circuit."
As a practical matter, in order for the travel ban to go into effect, the federal government would need a higher court to reverse or stay both district court orders, as they both are nationwide in scope.
Further District Court Proceedings. Absent to, or in parallel with, appellate action, both district courts will conduct further proceedings to determine whether to provide longer-term relief. Initially, the Hawaii court can be expected to consider whether to issue a longer-term preliminary injunction to replace the TRO. (The Maryland court’s order was itself a preliminary injunction.) That decision would utilize similar standards as those governing the TROs, but with the benefit of more expansive briefing and argument.
Ultimately, the district courts could reach a final merits decision on the case, and order (or deny) permanent injunctive relief. However, because the travel ban is only slated to be in effect for 90 days, the courts may not reach a final determination, with the TRO and/or PI effectively being their last words on that issue. The refugee program changes are slated to be in effect through the end of the federal fiscal year (September 30), so there is a larger chance a court would reach the merits stage on that issue.
Proceedings in Other Courts. There are also challenges to the Executive Order proceeding in other district courts around the country, which could result in orders blocking parts of the order on the same or different grounds as the Hawaii and Maryland orders. For example, the Eastern District of Virginia will hold a hearing on Tuesday, March 21 to consider a TRO motion in Sarsour v. Trump. Additionally, the Western District of Washington is considering a TRO motion in Ali v. Trump, a class action brought by several advocacy groups pending before Judge Robart, who issued the nationwide TRO against the January Order.
The only enjoined parts of the Executive Order are the travel ban (enjoined by both the Hawaii and Maryland courts), and the refugee program changes (enjoined only by the Hawaii court).
Other less-publicized sections of the Executive Order remain in effect, several of which have the potential to impede business travel to the United States.
* * *
Gibson Dunn will continue to monitor these rapidly developing issues closely.
 See, e.g., Analysis of March 6, 2017 Executive Order on Immigration (Mar. 7, 2017), http://www.gibsondunn.com/publications/Pages/Analysis-of-March-6-2017-Executive-Order-on-Immigration.aspx; Ninth Circuit Court of Appeals Issues Opinion Upholding Nationwide TRO of January 27 Immigration-Related Executive Order (Feb. 10, 2017), http://www.gibsondunn.com/publications/Pages/Ninth-Circuit-Issues-Opinion-Upholding-Nationwide-TRO-of-Jan27-Immigration-Executive-Order.aspx
 Order, Hawai’i v. Trump, No. 1:17-cv-50 (D. Haw. Mar. 15, 2017), ECF No. 219, https://www.clearinghouse.net/chDocs/public/IM-HI-0004-0032.pdf
 Opinion, Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-361 (D. Md. Mar. 16, 2017), ECF No. 149, https://www.clearinghouse.net/chDocs/public/IM-MD-0004-0032.pdf
 Remarks by the President at Make America Great Again Rally (Mar. 15, 2017), https://www.whitehouse.gov/the-press-office/2017/03/15/remarks-president-make-america-great-again-rally
 See White House Daily Briefing at 8:00 (Mar. 16, 2017), http://cs.pn/2mUXKNh
 Order, Sarsour v. Trump, No. 1:17-cv-120 (E.D. Va. Mar. 13, 2017), ECF No. 17, https://www.clearinghouse.net/chDocs/public/IM-VA-0005-0009.pdf
 Emergency Motion for Temporary Restraining Order and Preliminary Injunction, Ali v. Trump, No. 2:17-cv-135 (W.D. Wash. Mar. 10, 2017), ECF No. 53, https://www.clearinghouse.net/chDocs/public/IM-WA-0028-0008.pdf
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or any of the following:
Theodore J. Boutrous, Jr. – Los Angeles (+1 213-229-7000, email@example.com)
Rachel S. Brass – San Francisco (+1 415-393-8293, firstname.lastname@example.org)
Anne M. Champion – New York (+1 212-351-5361, email@example.com)
Ethan Dettmer – San Francisco (+1 415-393-8292, firstname.lastname@example.org)
Theane Evangelis – Los Angeles (+1 213-229-7726, email@example.com)
Kirsten Galler – Los Angeles (+1 213-229-7681, firstname.lastname@example.org)
Ronald Kirk – Dallas (+1 214-698-3295, email@example.com)
Joshua S. Lipshutz – Washington D.C. (+1 202-955-8217, firstname.lastname@example.org)
Katie Marquart, Pro Bono Counsel & Director – New York (+1 212-351-5261, email@example.com)
Samuel A. Newman – Los Angeles (+1 213-229-7644, firstname.lastname@example.org)
Jason C. Schwartz – Washington D.C. (+1 202-955-8242, email@example.com)
Kahn A. Scolnick – Los Angeles (+1 213-229-7656, firstname.lastname@example.org)
© 2017 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.