February 10, 2017
On Monday, January 30, 2017, Gibson Dunn issued a client alert regarding President Trump’s January 27 Executive Order restricting entry into the United States for individuals from certain nations, and making other immigration-related policy changes. On February 1, Gibson Dunn issued an updated client alert, covering subsequent developments relating to the Executive Order including: (1) coverage of dual citizens; (2) provisional revocation of certain visas; and (3) reciprocal policy changes abroad.
This update describes yesterday’s Ninth Circuit decision in State of Washington v. Trump, which denied the Government’s request to stay the nationwide temporary restraining order, as well as other recent developments relating to the various legal challenges to the Executive Order. On February 10, the Ninth Circuit issued a sua sponte request that the parties brief whether en banc review by the Ninth Circuit is appropriate. At the same time, news reports indicate that the Trump administration may issue a revised executive order, rather than appeal the decision. This update also provides considerations for companies and others as they continue to deal with the aftereffects of the Executive Order and the various court challenges to it. This alert is informational only, and you should, of course, seek legal advice specific to any particular situation.
On February 3, in an action brought by the State of Washington and the State of Minnesota, the United States District Court for the Western District of Washington (Hon. James L. Robart) issued a nationwide temporary restraining order against enforcement of the Executive Order. The next day the federal defendants filed an emergency motion for an immediate administrative stay and for a stay pending appeal. The Ninth Circuit denied an immediate stay and held telephonic oral argument on Tuesday, February 7.
On Thursday, February 9, the three-judge panel issued its unanimous opinion holding 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." Opinion at 3.
The Court determined it had appellate jurisdiction due to the extraordinary circumstances of the case, even though it generally does not review temporary restraining orders. The Court rejected the Government’s argument that the plaintiff States lack Article III standing, finding that, for purposes of this stage of the proceedings, the States adequately alleged that the Executive Order caused concrete harm to their state universities, faculty and students. Opinion at 12.
While recognizing the deference owed to the executive branch on matters of immigration and national security, the Court rejected the Government’s argument that the Executive Order was not subject to judicial review, stating that such a claim "runs contrary to the fundamental structure of our constitutional democracy." Opinion at 14. The Court went on to cite a number of instances in which federal courts have reviewed and, in some instances invalidated, executive actions taken in the name of national security. Opinion at 14-18.
In deciding whether to stay the temporary restraining order, the Court examined four factors: (1) whether the federal government was likely to succeed on the merits; (2) whether the federal government would be irreparably harmed absent a stay; (3) whether the stay would irreparably injure the plaintiff States; and (4) what is in the public interest.
As to success on the merits, the Court concluded that the federal government had not demonstrated that it was likely to succeed on the merits, at least with respect to the States’ due process claims. With respect to the due process claims, the federal government failed to show that the Executive Order provided notice and a hearing prior to restricting an individual’s ability to travel. The Court rejected the federal government’s assertion that the Executive Order no longer applies to lawful permanent residents, as that clarification came from the White House counsel, who is "not known to be in the chain of command for any of the Executive Departments." Opinion at 22. With respect to those without legal status, the court found potential claims of due process violations existed as well. The Court also noted that the States’ religious discrimination claims raised "serious allegations and present significant constitutional questions," but reserved consideration of those claims until the merits are fully briefed. Opinion at 26.
With respect to the likelihood of irreparable harm, the Court found that the federal government failed to show that a stay was necessary to avoid unnecessary injury stating, "the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years." Opinion at 26. The Court found that the States had offered ample evidence of irreparable harm, including separating families and stranding individuals traveling abroad. Opinion at 28. Finally, the court found that there were competing public interests at play here such that irreparable harm alone could not justify a stay. Opinion at 28-29.
The Court also declined the federal government’s proposed alternative relief, including modification or narrowing of the existing temporary restraining order either in geographic scope or as to what categories of covered individuals. Opinion at 23-24.
On the day after the Ninth Circuit issued its ruling, it issued an order that the parties submit simultaneous briefs setting forth their positions on whether en banc review by an 11-judge panel of the Ninth Circuit is appropriate. At the same time, as stated above, recent news reports indicate that the White House may not seek to appeal the decision and will instead draft and issue a revised executive order.
Since the January 27 Executive Order was issued, dozens of legal challenges have been brought in an effort to stay or invalidate the Executive Order. Many of these suits have resulted in orders staying or limiting the Executive Order itself, including by judges in Massachusetts, Brooklyn, and Virginia. See, e.g., Louhghalam v. Trump, No. 1:17-cv-10154-NMG (D. Mass. Feb 3, 2017); Darweesh v. Trump, 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, No. 1:17-cv-116 (E.D.Va. Jan. 28, 2017). One decision refused to offer temporary injunctive relief against the effectiveness of the Executive Order. Louhghalam, 2017 WL 479779 (D. Mass. Feb. 3, 2017). At least one case seeking to enjoin enforcement of the Executive Order has been stayed pending today’s decision by the Ninth Circuit. State of Hawaii v. Donald J. Trump et al., No. 1:17-cv-50 (D. Haw. February 3, 2017).
Other lawsuits filed over the course of the last week have sought to challenge the Executive Order as whole, as well as its impact on specific populations. See, e.g., Pars Equality Ctr. v. Trump, No. 1:17-cv-255 (D.D.C. Feb. 9, 2017) (suit by several Iranian-American groups seeking a broad permanent injunction and alleging that the Executive Order reflects "invidious discrimination"); Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361 (D. Md. Feb. 7, 2017) (seeking declaration that "the entire Executive Order is unlawful and invalid").
Despite the temporary clarity provided by the Ninth Circuit’s ruling, there are, as described above, multiple legal challenges still outstanding and the likelihood of further appeals of the Ninth Circuit decision issued on Thursday, February 9. As such, companies and others should still consider the guidance provided in our earlier client alerts on this topic, until the courts or the administration provide more certainty on this issue. For example, companies should still consider modifying (or allowing for employee choice regarding) employee travel obligations, as appropriate to the company’s business needs, to avoid potential difficulties with travel to and from the United States. Likewise, if companies have officers, employees, contractors, or others affected by the Executive Order, or business stakeholders who will not be able to enter the United States due to the Executive Order, consider whether meetings can be conducted remotely or outside the United States.
 In addition to the filings by the parties, 20 amicus briefs were filed by a variety of entities and individuals. Sixteen of the briefs supported the States, and were submitted by various nonprofit organizations, several other states, labor organizations, a group of law professors, and a group of over 120 technology companies. Three briefs filed by a variety of nonprofit organizations support the government. These briefs are available on the Ninth Circuit’s website, at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000860.
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:
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