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Read the Ruling by the 9th Circuit

One of the most important aspects of activism and allyship is ensuring that you're well-informed. Being well-informed means both actively listening and seeking information from the source. This week, between the approval of Jeff Sessions as Attorney General and the 9th Circuit Court's ruling on the Muslim Ban (yes, we're still calling it that), it's prime time to discuss our favorite topic: The Law.

Below are a few supplementary items that may help guide your understanding of the judicial system in the United States. You'll notice there are no links to opinion pieces related to ruling. It's easy to get an opinion on a policy through newspapers, cable news, or social media (perhaps even too easy to get 45's opinion via twitter). In the spirit of activism and allyship: take a moment to actually read the 9th Circuit Court's ruling direct from the source.

Continuing the spirit of hoping you take the time to read at least some of the ruling, we'll keep our exceptionally witty commentary to ourselves and provide a brief outline of the order below. Reminder that this is a procedural step in the judgment--this does not determine the Constitutionality of the ban, simply whether the lower courts' rulings against the implementation of the executive order can stay in effect. 

9th Circuit Court Ruling By Issue / Holding

  1. Appellate Jurisdiction: establishes that the 9th Circuit Court can hear the case
  2. Standing: proves that the plaintiff has an issue that directly involved them in the case
    • The opinion reads: "[the State of Washington alleges] the teaching and research missions of [the State's] universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries."
  3. Reviewability of the Executive Order: Is the Court allowed to check an executive order when national security is at stake?
    • The opinion reads: "The Government has taken the position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections...There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy."
  4. Legal Standard: Specifically, in this case the 9th Circuit stated: "We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest."
    • The opinion reads: "The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims."
  5. Due Process: Here, the court addresses the Due Process claim. "The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their life, liberty, or property, without due process of law...and...may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond.”
    • The opinion reads: "The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel."
  6. Religious Discrimination: The First Amendment establishes that a law that has a religious, not secular, purpose violates the Constitution. The State of Washington argues that the executive order was intended to disfavor Muslims. 
    • The opinion reads: "The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed."
  7. The Balance of Hardships and the Public Interest: Has the Government demonstrated that the executive order must be re-instated in order to avoid irreparable injury, so much so that it balances against public interest?
    • The opinion reads (on hardship): "The Government has not shown that a stay is necessary to avoid irreparable injury...Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all...By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.”
    • The opinion reads (on public interest): Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay."

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