Quick Take On the Ninth Circuit’s Decision… By A Lawyer’s Tweetstorm

The Washington Post’s Jonathan Adler provides this brief synopsis of the decision by Ninth Circuit on Trump’s travel executive order:

CA9 decision, 3-0, rejecting Trump Administration appeal of district court’s TRO.https://t.co/SPifDBqTdz

— Jonathan H. Adler (@jadler1969) February 9, 2017

Opinion repeatedly cites Boumediene for proposition that courts may review executive branch national security decisions

— Jonathan H. Adler (@jadler1969) February 9, 2017

@jadler1969 CA9 decision rejecting Trump Administration appeal largely relies upon Due Process claims. /3

— Jonathan H. Adler (@jadler1969) February 9, 2017

CA9: Govt didn’t show EO provides due process “such as notice and a hearing prior to restricting an individual’s ability to travel.” /4

— Jonathan H. Adler (@jadler1969) February 9, 2017

Wow: CA9: “we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” /5

— Jonathan H. Adler (@jadler1969) February 9, 2017

CA9 declines to narrow TRO; reserves judgment on religion clause & equal protection claims /6

— Jonathan H. Adler (@jadler1969) February 9, 2017

Overall, CA9 opinion is fairly narrow. Standing & Due Process analyses are aggressive, but opinion avoids larger issues /7

— Jonathan H. Adler (@jadler1969) February 9, 2017

CA9′s decision to avoid equal protection & religious discrimination claims is significant. Litigation will continue. /8 f

— Jonathan H. Adler (@jadler1969) February 9, 2017

Trump Administration can seek stay from SCOTUS, but would think best tack is to litigate preliminary injunction in district court first. /9

— Jonathan H. Adler (@jadler1969) February 9, 2017

Just a couple of thoughts on this. It is more than a little unclear to me why the Administration would go back to a stacked court and merely increase the number of times they have lost the case. There is no way in hell that any panel of the Ninth or that circuit en banc is going to go any other way than it went.

It is also really obvious from the Ninth’s opinion that they had pretty much pre-judged the issue. For instance, they trot out the “Muslim ban” trope and say they have a right to consider that in their decision while ignoring that the most Muslims are not affected by the travel ban. They set themselves up as the arbiters of what is an acceptable level of risk to be assumed by the people of the United States while they are secure in their knowledge that if a terrorist from one of those seven countries kills a dozen people in an American city that the elected officials of the country, not them, will have to take the blame and pick up the pieces.

In short, the decision is pretty much a personal rebuke of Trump.

The only good news is that it is from the Ninth Circuit.

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