Tech Reaction Subdued to Appeals Decision Keeping Immigration Order Suspended

Though the tech industry overwhelmingly backed the states of Washington and Minnesota in their fight to keep Trump’s now-suspended order from being reinstated (see 1702060016), few industry groups or companies spoke up to praise the 9th Circuit’s decision. Among those, several said they recognize the ruling, though favorable to their side, is only one early development in a legal fight that likely will persist.

“As courts proceed on immigration, we’ll work w/ the White House on a long-term approach to maximize security + welcome the best & brightest,” CTA President Gary Shapiro said in an early-Friday tweet that mentioned nothing about the 9th Circuit’s decision. Trump’s immigration order “preventing the best and brightest from entering our country undercuts one of America's competitive advantages,” Shapiro said in a Jan. 29 statement two days after the order took effect (see 1701290001).

Mozilla, one of nearly 150 tech companies signing an amici brief at the 9th Circuit supporting Washington and Minnesota in their fight against an emergency stay of the TRO, called the decision “a step in the right direction, but we expect legal proceedings will continue,” in a Thursday blog post. “The ability for individuals, and the ideas and expertise they carry with them, to travel across borders is central to the creation of the technologies and standards that power the open internet.”

The Electronic Frontier Foundation was “heartened to see” the 9th Circuit “reject the notion that executive actions -- including those couched as relating to national security -- can’t be tested against the Constitution,” tweeted Legal Director Corinne McSherry Thursday. “That testing is the fundamental duty of the court system.”

The conservative watchdog group Judicial Watch took a different tack on the 9th Circuit in siding with the Trump administration in the losing cause. The ruling was “a dangerous example of judicial overreach,” President Tom Fitton said in a statement.

The Republican National Committee blasted the "ultra-liberal" 9th Circuit for striking down Trump's "temporary restriction on people entering our country from nations compromised by terrorism." The immigration order is "a commonsense, constitutional policy to keep our country safe," said the RNC’s appeal on an online petition soliciting support for Trump's order. "While the media and Democrats have fought this commonsense policy, we need to show that the American people are behind it 100%.”

In Tuesday’s oral argument on the Trump administration’s emergency motion to reinstate the immigration order, the three judges on the 9th Circuit panel peppered lead Justice Department attorney August Flentje with repeated questions about the government’s rationale for arguing that the states of Washington and Minnesota had no legal “standing” to bring the lawsuit blocking enforcement of Trump’s order. “Is there any purpose in your argument that we shouldn’t recognize this lawsuit by the states, and we should instead wait for an individual to bring the same claims?” asked Judge Michelle Friedland.

Flentje responded that “there needs to be a concrete, legally protected interest that’s judicially cognizable” for the states to have the same standing to sue as an individual. “Across the country, there are many lawsuits where there clearly is standing,” he said. “But in this case, there’s a lot of law that says states can’t step into the shoes of their citizens.”

But Flentje conceded as his time was running out that “I’m not sure I’m convincing the court” on the argument the states had no standing. So he quickly turned to argue a second “key point,” that the TRO imposed by U.S. District Judge James Robart in Seattle blocking enforcement of Trump’s immigration order was “overbroad.” The TRO wrongly was nationwide in scope and gave due-process protections to would-be immigrants from seven Muslim-majority countries even if they never set foot on U.S. soil, Flentje said. The TRO “should be immediately stayed to the extent it is overbroad, even if the court thinks some applications of the order are problematic,” he said.

In their 3-0 decision, Judges Friedland, William Canby and Richard Clifton rejected both Flentje arguments. The states have “standing to sue” because they have “alleged harms to their proprietary interests traceable” to Trump’s immigration order, said the 29-page decision. Nor is the TRO overbroad, because there are no grounds to exclude citizens from the seven designated countries, even if they have never traveled to the U.S., it said. The government also makes no strong argument for limiting the TRO's geographic scope, it said.

Since the order “prevents nationals of seven countries from entering Washington and Minnesota,” some of those nationals “will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave,” the decision said. “And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.”

On DOJ's argument the TRO was overbroad on two fronts, “we decline to modify the scope of the TRO in either respect,” the decision said. The Trump administration, in a proposed revision of the immigration order, had asked the 9th Circuit in court papers to limit the TRO to protect only green-card holders and previously admitted aliens who are temporarily abroad now or who wish to travel and return to the U.S. in the future, it said.

But doing so "omits aliens" who are in the U.S. unlawfully, “and those individuals have due process rights as well,” the decision said. “That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States.” The court’s conclusion: “There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.”

The judges also declined to limit the geographic scope of the TRO, as the government sought, the decision said. “At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail.”

Even if it would be “desirable” to limit the TRO’s geographic scope, the 9th Circuit said, the Trump administration “has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.” In any case, “even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order,” the decision said.