While national media attention has focused on tonight’s hearing before the Ninth Circuit regarding President Trump’s immigration Executive Order, there are still proceedings in the Eastern District that could become center stage. This Blog post is the second post tracking the legal events in the EDVA case of Aziz at al. v. Trump, the challenge to the January 27th Immigration Executive Order. Last week’s post covered the sprint from the January 28th initial Habeas Corpus Petition filing to the first courtroom confrontation on Friday morning, February 3, 2017. This week, the focus shifts to the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order, but also with an eye on parallel proceedings in the Seattle federal court and the Ninth Circuit.
Friday’s Orders in EDVA, Seattle, and the Ninth Circuit
Before the close of business on Friday, February 3, 2017, Judge Brinkema released her Order and Memorandum Opinion covering the issues argued that morning in Aziz v. Trump, Case No. 1:17cv116—LMB/TCB. The Order and Opinion continued her earlier Temporary Restraining Order (TRO) to Friday, February 10th, and set the stage for the Court’s consideration of the Commonwealth of Virginia’s Motion for a Preliminary Injunction aimed at Section 3(c) of the Executive Order.
Meanwhile, 2,500 miles away in the Seattle federal court and before the Ninth Circuit, a broader set of issues advanced. The Seattle judge, in Washington v. Trump, 2:17cv141, issued a TRO that barred enforcement of both Section 3(c) and most of Section 5 of the Executive Order.
The Government sought emergency relief from the TRO in the Ninth Circuit Court of Appeals. On Saturday, February 4th, the appellate court denied the Government’s request for emergency relief, but ordered the parties to file briefs on Sunday evening and on Monday. After the expedited briefing, the Ninth Circuit scheduled a telephonic hearing for later this evening (Feb. 7th) on the Government’s Motion for a Stay of the underlying TRO. A ruling is expected shortly, most likely within a few days.
The Immigration Executive Order
An Executive Order is technically not legislation but instead a presidential directive to executive agencies as to how to enforce certain laws. The core of the January 27th Immigration Executive Order: (1) calls for a review by Homeland Security (in consultation with the Department of State and the Director of National Intelligence) of the U.S. visa-issuance procedures, (2) in Section 3(c), puts a 90-day ban on entry (with limited exceptions) on individuals from seven Muslim-majority countries (the ban on persons from Syria is indefinite), and (3) in Section 5, suspends for 120 days the U.S. Refugee Admissions Program. (An added provision appearing immediately after the travel ban calls for the government to develop a “uniform screening standard and procedure” for all individuals seeking to enter the United States. Applied literally, this appears to require all visitors to go through the same screening measures, regardless of where they come from or how long they intend to stay. This added provision is not the subject of either the EDVa or Seattle proceedings.)
Section 3(c) is the lightning rod for the current Aziz v. Trump litigation.
EDVA Proceedings and Posture
Judge Brinkema’s February 3rd Orders granted Virginia’s Motion to Intervene. The Court also permitted intervention by a second set of individual plaintiffs. The judge continued her Saturday Night TRO to February, February 10th. Under FRCP Rule 65(b)(2), a TRO’s duration cannot exceed 14 days. Thus, Judge Brinkema will hear argument on Virginia’s Preliminary Injunction Motion on February 10th.
Virginia’s brief targets Section 3(c) of the Executive Order. The Commonwealth filed its Complaint on February 3rd. Its Preliminary Injunction Motion and brief were filed the day before. The Government’s brief is due early this week.
Virginia’s argument is first that Section 3(c) is too broad. As written, the section bars visa and Green Card holders from seven Muslim-majority countries from entry into the U.S. for 90 days. The Virginia brief cites U.S. Supreme Court authority holding that Green Card holders have due process rights, and the Executive Order strips them of their rights without an available process. The Virginia argument extends these rights to certain visa holders as well.
The second argument contends that the Executive Order was “motivated by animus towards Muslims.” The brief argues that the directives are presumptively unconstitutional and should be held to strict scrutiny.
The expected Government response will track arguments in the Government’s Ninth Circuit brief described below.
Seattle Federal Court and the Ninth Circuit
As has been widely-reported in the national press, on February 3rd, a Seattle federal judge granted a TRO sought by the States of Washington and Minnesota. His TRO is much broader than Judge Brinkema’s Order—the Seattle TRO bars enforcement of Section 3(c) and most of Section 5 of the Executive Order. Additionally, the Seattle TRO is granted “on a nationwide basis” while Judge Brinkema’s current Order is narrowly written. The parties in the Seattle matter were directed to submit no later than the end of February 6th a briefing schedule. In an email from the Washington Solicitor General to the Department of Justice counsel, Washington State proposes that the Preliminary Injunction briefs be due on February 9, 15, and 17 in the Seattle district court.
Meanwhile, the Government sought from the Ninth Circuit an immediate stay of the Seattle TRO. On Saturday, February 4th, a two-judge panel denied the emergency motion. The Court ordered Washington and Minnesota to file briefs by 11:59 p.m. PST on Sunday night. The states filed. The Government’s Reply came in right at the 3 p.m. PST deadline.
The Washington/Minnesota Brief in Opposition to the Motion for a Stay includes a supporting declaration signed by former members of the Obama Administration, including Madeline Albright, John Kerry, Michael Hayden, Janet Napolitano, Leon Panetta, and Susan Rice that makes, among other things, a policy argument. The affidavit concludes by alleging that “the Executive Order does not further—but instead harms—sound national security and foreign policy.”
The Government’s response argues from the start that “the Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.” The response also attacks the Seattle TRO as “vastly overbroad.”
If the Ninth Circuit denies the Government’s Motion for a Stay, then a route to the U.S. Supreme Court theoretically opens. But the more likely result is that the case remains at least for another ten days in the Seattle district court—the Seattle judge’s TRO lasts at most 14 days, so he should rule on the Motion for Preliminary Judgment, probably close to February 17th. That Order could then go back to the Ninth Circuit, and then possibly to the U.S. Supreme Court.
State Department and Homeland Security Press Releases
At the same time as the legal wrangling, the State Department issued a press release stating that it had restored more than 50,000 cancelled visas and that the “provisional revocation [of visas pursuant to the Executive Order] is now lifted, and those visas are now valid for travel to the United States, if the holder is otherwise eligible.”
Similarly, Homeland Security announced via its website on February 4th that it had “suspended all actions to implement the Immigration Executive Order and will resume standard inspections of travelers as it did prior to the signing of the travel ban.” But the press release added that the Justice Department will continue to defend the Executive Order.
The Preliminary Injunction Hearing on Friday, February 10th
Assuming that the Ninth Circuit denies the Government’s Motion for a Stay, the national focus likely shifts to the EDVA proceedings because of the Preliminary Injunction hearing set for this Friday before Judge Brinkema. This hearing comes at least one week before the issues regarding the Executive Order would likely return to the Seattle federal courtroom.
Unless the Ninth Circuit provides a comprehensive opinion in response to the Motion to Stay the Seattle TRO, a ruling and opinion from Judge Brinkema will be the first substantive ruling on provisions of the Executive Order. We might then expect the Government to take the issue immediately to the Fourth Circuit.
Thus, it is very possible that the national spotlight will suddenly shift to Alexandria after tonight’s telephone hearing before the Ninth Circuit. If you are a practitioner appearing in federal court in Alexandria for Friday motions, be prepared for a heavy police presence, protesters, and a long line at security.