As a former DOJ lawyer for the Civil Division I was fascinated by the 9th Circuit argument. Yes, the court asked very tough questions to both sides. I caution against reading anything into which side had the tougher questions because often the court will ask the toughest questions to the side they ultimately rule for. I also caution against reading too much into the DOJ attorney stumbling on some of his responses. Often, oral argument is icing on the already baked cake . . . very few oral arguments change a judge’s mind, which is usually made up by the time they have finished reviewing the briefs, although in this kind of case it is possible that the court was still “undecided” by the time the argument came and that the argument for one side or another may be persuasive.
Under normal circumstances, I agree that Judge Clifton did seem the most open to the Government’s argument. It is also true that there is great deference to the Executive decision. (I never lost a case while at Justice, though the case I was working on when I left was decided against the US because Reagan took office and refused to renew the particular law at issue.But Executive decisions do get a kind of deference).
Having said that, I hold great hope that we will get a UNANIMOUS decision in favor of keeping the stay. I believe the FEDERAL judiciary is exquisitely attuned to the fact that this particular “Executive” (this “so called President so to speak!) has a widely authoritarian bent, and has shown from day one that he will push all the limits to his power. I believe the 9th Circuit will be able to craft an order that makes it clear that the Executive’s power, even on issues of immigration and national security, is NOT unfettered. The DOJ’s response to the question of unfettered power was shocking . . there’s a reason the attorney hesitated before saying “Yes” to that question.
While I agree that there is a possibility that a narrower order focusing only on people abroad who have yet to apply for a visa would be constitutional, I believe the panel made it clear that neither the DOJ attorney nor the court itself was the proper party to craft an order that would be constitutional. If there is a narrower order, it is not what the words of the EO say. So it’s up to the Executive to go back and do it again,properly.
I think the Standing issue will be decided easily in the State’s favor. Even Clifton seemed clear on that.
The big question for me is whether the Court will treat the matter (as requested by the State) as a Temporary Restraining Order (TRO) as it is called by the lower court and the State attorneys and simply send it all back to the District court for a full hearing on the merits of an injunction, or whether it will look at it already an injunction and issue detailed order allowing the underlying decisions to be made by a higher court rather than sending it back. USUALLY, Courts don’t like to decide MORE than the absolute minimum needed for the particular matter. (Here, whether or not the 14 day “stay” to allow things “status quo” while the lower court issues a final ruling on the injunction,or whether they will address the underlying issues.)
Here’s what I believe will happen: Unanimous decision by all three judges that the State has STANDING to bring this on behalf of the affected entities in the State of Washington, and that the ruling must be nationwide because of the requirement that there be uniformity in such laws. On the issue of whether the State has made a showing of “likely to succeed on the merits” and “irreparable harm” the Court will side with the State as to the application to everyone, including people with green cards or who are here on legal visas will be ruled improper.
There is a possibility that the Court will give some “sop” to the Government by making some statement reaffirming the broad power of the Executive and suggesting that a different order may well pass muster. It is possible that the Court will look at the Government’s “fall back” offer of having the order apply only to those who are outside the country and have had no contact before and are applying now for visas while allowing the current green card and visa holders an “exemption” from the order as written, but I don’t believe this Court will want to make a precedent of “rewriting” Executive Orders that are badly crafted in order to do the Executive Branch’s work for it.
Given this President’s clear statements and intentions about wielding his power with as little review as possible, I am HOPEFUL that this Court will use the moment to put in place a VERY CLEAR RULING that presidential power is NOT UNFETTERED and to make an even clearer statement that there are THREE CO-EQUAL Branches of Government, and that it has been clear (since Marbury v. Madison) that the Courts are the ultimate arbiters of what the LAW means and whether it is VALID, NOT the Executive.
I feel more hopeful after seeing this argument (regardless of the ruling issued) that UNLIKE the complicit Republicans in Congress who seem to forget that they are not there as lickspittles to the President, the Federal Courts offer some hope for an impartial hearing based on law and evidence, not tweets and rants.