Feb 092017

Yes, I know I read judicial decisions for a living, and as someone practiced in it my notion of whether reading one is “easy” may be different than someone who has never read one. But the Ninth Circuit’s decision on the immigration Executive Order is remarkably well-written and walks clearly through each and every issue before it. In fact it is so well-written that everyone, lawyers and non-lawyers alike, should be able to read it and understand what they are reading. And it’s of such importance that everyone should try to, so that when people debate and discuss it in the coming days everyone will be able to have an informed opinion about it.

What therefore follows is a guide to reading this decision, a roadmap that explains what you are reading to help make its pages seem less intimidating. Go on and give it a shot. The decision is a little long, but there’s not too much legal gobbledygook, and what there is I try to translate below.

First, here are some general things about the decision that you can go ahead and ignore. This list begins with all of the first page, which functions as a title page for the decision, listing the case number, date of the argument, date of the decision, the names of who’s doing the suing (the “plaintiffs,” in this case led by the State of Washington), who’s doing the defending (in this case the Trump administration, or “the Government”), which lawyers did the arguing, and who the judges are who did the deciding). The top of the second page then lists the names of all the lawyers involved.

Next, let’s talk about citations. If you ever read Wikipedia you know what a citation is: it’s a source that a writer can point to that contains the same information or idea, which helps provide support for that idea. Courts use citations all the time because it helps make their legal conclusions stronger if they can point to another court having come to the same one before. So the citations that are included in this decision are important, but not so important that you need to stress about them and the weird way they are written. For instance, if you read something like…

The quick brown fox jumped over the lazy dog. Fox v. Dog, 123 U.S. 456 (2016). We have found that foxes have the right to jump over dogs when they are lazy. Lazy Hounds, Inc. v. Fast Foxes, LLP, 789 F.3d 012 (9th Cir. 2016). Indeed we have held that they have this right regardless of how quick they are. Id. Congress has also expressly granted quick foxes the right to jump over lazy dogs. See 99 U.S.C. § 990(a)(1) (codifying this right).

…you can ignore all those weird sentences with all the numbers and just read “The quick brown fox jumped over the lazy dog. We have found that foxes have the right to jump over dogs when they are lazy. Indeed we have held that they have this right regardless of how quick they are. Congress has also expressly granted quick foxes the right to jump over lazy dogs.” But if you do want to look at the citations, one thing worth noting is whether they include a “U.S.” part in between the numbers, because that means it’s a Supreme Court decision.  (The year it was issued is the number that appears in parentheses.)

Finally, on the list of things that are ok to ignore, there are also footnotes. Footnotes can include really interesting things. In fact, some people think that they can often contain some of the most interesting parts of a whole decision! But reading them can interrupt the flow of the decision, and if this is the first judicial decision you’ve ever read, then it’s fine to ignore them for now.

OK, now that we’ve gotten the basics down, let’s get to the text of the decision itself. It’s long, but it’s very systematic and organized. What follows here are summaries of its various sections, but it is still worth reading the actual decision because it helps explain the judges’ thinking in greater detail, which will be relevant for this and other cases later.

The first couple of paragraphs indicate that all three of the judges wrote the opinion together (that’s what “per curiam” means) and provide an introduction for the rest of the decision that follows. Then we get into the background. These paragraphs explain how we got here: who did what, what court decided what, and what this court now needs to decide. In this case, the President had signed an Executive Order that did several things described in the full paragraph on Page 4. The next paragraph describes the impact of those things. Then the following paragraphs describe what happened next: The State of Washington brought a lawsuit, and as part of the lawsuit the state asked for a temporary restraining order (aka a “TRO”) to block the Executive Order. The district court held a hearing, and then after the hearing granted the TRO, which blocked the entire Executive Order. Functionally this blocking meant that all of our immigration laws went back to how they were before Trump became President. The Government filed this appeal to undo that TRO, so that instead of things going back to how things were before Trump became President they would go back to how they were the weekend that the Executive Order was in place. And that’s what this court had to decide: whether to keep the TRO in place (to keep things as they were before Trump) or to overturn the TRO (so that the Executive Order could go back into effect). But it’s important to note: whichever way the Court had decided, neither option would have finally resolved the question of whether the Executive Order was ok; this decision only ever was about deciding what the situation would be like while the rest of the lawsuit about it continued.

Now we are at Section II, which is where the serious judging starts. The first thing the Court considered was whether they could even hear this appeal (aka, have “jurisdiction” over it). And on this question Trump actually chalks up a win. Normally it is not possible to appeal a TRO, but in this case the Court decides, yes, it will hear the government’s appeal anyway.

But things start going downhill for the Government after that. Section III addresses the question of “standing.” Standing is a really important issue in all court cases. It’s often why a lot of them get thrown out, because even if someone has done something wrong, it’s not just anyone who can sue over it. For instance, if someone does something bad to your neighbor, your neighbor can sue over it because they were who was hurt. But you can’t sue, even if you know that something bad happened, because you were not the person the bad thing happened to. This section on standing explores the question of whether the Executive Order hurt the State of Washington in a way that it is allowed to sue for. The Court decides that it did, mostly because the Executive Order affected Washington’s state universities.

Section IV considers the question of whether the Court could review the Executive Order at all. The Government had tried to argue that the President had complete discretion over U.S. immigration policy. But the Court said that while he was entitled to deference on individual immigration decisions, he did not have the power to set policy unilaterally. The court could always review policy decisions to make sure that they were within the bounds of applicable statutes and the Constitution itself, and it cited a lot of Supreme Court cases for this principle.

Next Section V considered whether granting a stay (or, in other words, canceling the TRO and putting the Executive Order back into effect) is appropriate. The second paragraph here describes a test that the court will use to make that determination, with the two most important elements of the test being whether the Government is likely to succeed in the overall lawsuit, and whether it will suffer “irreparable injury” if the stay is not granted. These are questions common to most cases where there is the prospect of an injunction (aka, a judicial order to make something be a certain way) early on in a lawsuit, and both make sense. Courts don’t like to change the status quo unless (a) it is very likely that the status quo would end up changed by the end of the lawsuit, and (b) if bad things would likely also happen while the court is finishing its adjudication of the lawsuit. Here the Court decides that the Government hasn’t provided enough evidence to lead the Court to believe the answer is “yes” to either question.

The Court goes into more detail on the first part of the test in Section VI and Section VII. One of the bases for the State of Washington’s lawsuit against the Executive Order was that it denied people their due process rights. Figuring out whether Washington would be likely to succeed on this claim is complicated because there are a lot of people affected by the Executive Order, and in different ways, for different reasons. Some of them might have valid due process complaints and some of them might not, yet the TRO blocks the entire Executive Order from affecting anyone. In Section VI the Court decides that the State of Washington is at least likely to prevail on some of the due process claims, and also that there is no way that the Court could tailor the TRO to let some of the Executive Order go back into effect but not all of it. However, because of this finding, and the fact that this case will continue rapidly, the Court did not choose to venture an opinion as to the religious discrimination claim discussed in Section VII. (It did, however, note that Trump’s public statements about wanting a “Muslim ban” could potentially be important evidence as to whether the Executive Order actually was an unconstitutional anti-Muslim ban, but it did not ultimately decide whether it was or not.)

Section VIII then considers the balance of harms, which is the second part of that test. The Court notes that the plaintiffs supplied lots of evidence that people will be harmed if the Executive Order goes back into effect, but that the Government did not similarly show that there will be any harm if it does not. The Court finds that the Government’s claim that putting the Executive Order back into effect would affect national security is not enough; the Government would actually need to show that the delay would affect national security.

And that’s it; that’s the end of the case. Congratulations on reading your first judicial decision! Stay tuned for further updates from this case. If the Government does nothing the lawsuit over its constitutionality will continue at the district court [Edit: possibly; there’s some question about whether this would be the next step], with both sides submitting more legal briefs and evidence and then likely participating in another hearing, but it’s possible that the Government will try to see if this decision could be overturned either by the entire Ninth Circuit en banc (meaning with all of its judges, rather than just these three) or the U.S. Supreme Court before then.

  2 Responses to “How to read the Ninth Circuit decision on the immigration Executive Order”

  1. Great post, Cathy. Very clear analysis and helpful explanations for the uninitiated. Well done.

  2. Great post. Thank you.

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