Washington v. Trump

• Decision Date: 15 March 2017
• Docket Number: No. 17-35105,17-35105
• Citation: 853 F.3d 933 (Mem)
• Parties: State of WASHINGTON; State of Minnesota, Plaintiffs–Appellees, v. Donald J. TRUMP, President of the United States; U.S. Department of Homeland Security; Rex W. Tillerson, Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

853 F.3d 933 (Mem)

State of WASHINGTON; State of Minnesota, Plaintiffs–Appellees,

v.Donald J. TRUMP, President of the United States; U.S. Department of Homeland Security; Rex W. Tillerson, Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America, Defendants–Appellants.

No. 17-35105

United States Court of Appeals, Ninth Circuit.

Motions Panel-February 9, 2017

FILED MARCH 15, 2017

Marsha J. Chien, Assistant Attorney General, Colleen M. Melody, Assistant Attorney General, Washington State Attorney General's Office, Patricio Antonio Marquez, Esquire, Attorney, AGWA–Office of the Washington Attorney General (Seattle), Seattle, WA, Anne E. Egeler, Deputy Solicitor, Noah G. Purcell, Esquire, Solicitor, AGWA–Office of the Washington Attorney General (Olympia), Olympia, WA, for Plaintiffs–Appellees.

Jacob Campion, Office of the Minnesota Attorney General, Alan I. Gilbert, Esquire, Solicitor, Office of the Attorney General, Saint Paul, MN, for Plaintiff–Appellee State of Minnesota.

Matt Adams, Attorney, Northwest Immigrant Rights Project, Seattle, WA, for Intervenor–Pending Ali Plaintiffs.

James J. O'Hagan, Pro Se.

H. Thomas Byron, III, Attorney, Catherine H. Dorsey, Attorney, August E. Flentje, Douglas Neal Letter, Esquire, Sharon Swingle, Edwin Smiley Kneedler, DOJ–U.S. Department of Justice, Noel Francisco, Esquire, Office of the Solicitor General, United States Department of Justice, Lowell Sturgill, Jr., Attorney, U.S. Department of Justice, Civil Division/Appellate Staff, Washington, DC, for Defendants–Appellants.

Neal Katyal, Hogan Lovells US LLP, Washington, DC, for Amicus Curiae State of Hawaii.

Kim Blandino, Pro Se.

Emily Chiang, Legal Director, ACLU of Washington, Seattle, WA, for Amici Curiae ACLU of Washington, American Civil Liberties Union.

Scott A. Keller, Attorney, Office of Attorney General, Austin, TX, for Amicus Curiae–Pending State of Texas.

Charles Roth, National Immigrant Justice Center, Chicago, IL, for Amici Curiae ASISTA, National Immigrant Justice Center.

William B. Brady, Joshua M. Daniels, Attorney, Kevin Paul Martin, Attorney, Nicholas Mitrokostas, Eileen Morrison, Goodwin Procter LLP, Boston, MA, for Amici Curiae–Pending Foundation for the Children of Iran, Iranian Alliances Across Borders.

Erik Zimmerman, American Center for Law & Justice, Ann Arbor, MI, for Amicus Curiae American Center for Law and Justice.

Victor K. Williams, Pro Se.

Harrison Frahn, Jonathan Mincer, Simpson Thacher & Bartlett LLP, Palo Alto, CA, for Amici Curiae American Immigration Council, Human Rights First, Kind (Kids in Need of Defense), National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Tahirih Justice Center.

Anthony P. Keyter, Pro Se.

Anton A. Ware, Arnold & Porter Kaye Scholer LLP, San Francisco, CA, for Amici Curiae American Muslim Health Professionals, Council for the Advancement of Muslim Professionals, Islamic Medical Association of North America, Muppies, Inc., Muslim Advocates, National Arab American Medical Association, Network of Arab–American Professionals.

Richard Brian Katskee, Counsel, Americans United for Separation of Church and State, Washington, DC, for Amici Curiae Americans United for Separation of Church and State, Southern Poverty Law Center.

Michelle R. Lapointe, Southern Poverty Law Center, Atlanta, GA, for Amicus Curiae Southern Poverty Law Center.

Shelley A. Carder, Senior Counsel, Kendra J. Hall, Attorney, Richard D. Barton, Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, for Amicus Curiae Anti–Defamation League.

Herbert W. Titus, Esquire, William J. Olson, P.C., Vienna, VA, for Amici Curiae Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, English First, English First Foundation, Gun Owners Foundation, Gun Owners of America, Inc., Policy Analysis Center, Public Advocate of the United States, U.S. Border Control Foundation, United States Justice Foundation.

Meir Feder, New York, NY, Rasha Gerges Shields, Attorney, Los Angeles, CA, Jones Day, for Amicus Curiae Constitutional Scholars.

Genevieve Nadeau, Massachusetts Attorney General, Boston, MA, for Amici Curiae District of Columbia, State of California, State of Connecticut, State of Delaware, State of Illinois, State of Iowa, State of Maine, State of Maryland, State of Massachusetts, State of New Hampshire, State

of New Mexico, State of New York, State of North Carolina, State of Oregon, State of Pennsylvania, State of Rhode Island, State of Vermont, State of Virginia.

Jonathan Scott Goldman, Executive Deputy Attorney General, Pennsylvania Office of Attorney General, Harrisburg, PA, for Amicus Curiae State of Pennsylvania.

Daniel O. Escamilla, Pro Se.

Robert Seungchul Chang, Seattle University School of Law, Ronald A. Peterson Clinic, Seattle, WA, Robert A. Johnson, New York, NY, Jessica Weisel, Attorney, Los Angeles, CA, Akin Gump Strauss Hauer & Feld LLP, for Amicus Curiae Fred Korematsu Center for Law and Equality.

Larry E. Klayman, Esquire, Attorney, Freedom Watch, Inc., Washington, DC, for Amicus Curiae Freedom Watch, Inc.

Robert J. Stein, III, DiVincenzo Schoenfield Stein, Irvine, CA, for Amicus Curiae HIAS, Inc.

Matthew P. Bergman, Bergman Draper Ladenburg Hart, Chandler H. Udo, Bergman Draper Ladenburg, Seattle, WA, for Amicus Curiae Jewish Federation of Greater Seattle.

Claire Loebs Davis, Esquire, Attorney, Jessica Walder, Lane Powell PC, Seattle, WA, for Amicus Curiae Law Professors.

Fatma Essam Marouf, Attorney, Texas A&M University School of Law, Immigrant Rights Clinic, Fort Worth, TX, for Amicus Curiae Law Professors and Clinicians.

Natasha Julie Baker, Esquire, Counsel, San Francisco, CA, Alison Megan Hamer, Santa Monica, CA, Hirschfeld Kraemer LLP, Patricia Kay Runkles–Pearson, Attorney, Miller Nash Graham & Dunn LLP, Portland, OR, Mary Ellen Simonson, Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for Amicus Curiae Participating Law Firms of the Employment Law Alliance.

Steve Berman, Attorney, Hagens Berman, Seattle, WA, for Amicus Curiae Service Employees International Union.

Paul Whitfield Hughes, Andrew John Pincus, Mayer Brown LLP, Washington, DC, for Amicus Curiae Technology Companies and Other Businesses.

Kathleen Phair Barnard, Attorney, Dmitri Iglitzin, Attorney, Jennifer Robbins, Attorney, Schwerin Campbell Barnard Iglitzin & Lavitt LLP, Seattle, WA, for Amicus Curiae Washington State Labor Council.

Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges.

ORDER

This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 2017. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership , 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (holding that the "extraordinary remedy of vacatur" is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party).

This order is being filed along with the concurrence of Judge Reinhardt and the dissent of Judge Bybee. Filings by other judges may follow.

REINHARDT, J., concurring in the denial of en banc rehearing:

I concur in our court's decision regarding President Trump's first Executive Order—the ban on immigrants and visitors from seven Muslim countries. I also concur in our court's determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel's opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,¹ the President's decision was well within the powers of the presidency, and "[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration." Sale v. Haitian Ctrs. Council, Inc. , 509 U.S. 155, 165, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993). This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel , 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) —and the panel held that limitation inapplicable. I dissent from our failure to correct the panel's manifest error.

I

In this section I provide background on the source of Congress's and the President's authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II.

A

"The exclusion of aliens is a fundamental act of sovereignty." United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ; see also Landon v. Plasencia , 459 U.S. 21,...