Trump Lawyers, States Spar on 9th Circuit's Rehearing of Immigration Decision

The states of Washington and Minnesota disagreed with the administration, arguing in their own brief (in Pacer) Thursday that the three-judge panel “properly denied a stay” of the TRO. Dozens of prominent tech companies backed Washington and Minnesota in their fight to keep Trump’s now-suspended order from being reinstated (see 1702060016).

Justice Department lawyers think the three judges’ decision was based on “a misunderstanding about the scope” of Trump’s immigration order banning citizens of seven Muslim-majority countries from traveling to the U.S. for 90 days, said their brief. Contrary to the decision, the order doesn’t affect green-card holders, “who remain generally free to travel abroad and to return” to the U.S., it said. The order’s ban applies only to aliens “who have no statutory or constitutional entitlement” to enter the U.S., including those seeking “initial entry,” and those who don’t have green cards and who have left the U.S. and are seeking to return, it said. In its decision, contrary to that argument, the three-judge panel concluded that while there might be individuals covered by the TRO "who do not have viable due process claims," the Trump immigration order "leaves out at least some who do.”

The decision also erred when it said Washington and Minnesota had standing to sue, said the DOJ brief. The states “are not the proper plaintiffs” for “adjudicating the validity” of the immigration order as it applies to “a third-party alien in individual circumstances,” it said. Under Article III of the Constitution, “the individuals who are actually affected by a concrete application of the Order may bring suit (as many have), and a court could adjudicate such a case while taking into account its particular circumstances and Congress’s express limitations on the scope of judicial review,” it said.

Though the three-judge panel’s opinion “readily meets” the normal standards for rehearing en banc, the Trump administration “does not seek en banc review of the merits of the panel’s ruling,” said the brief. “Rather than continuing this litigation,” the Trump administration “intends in the near future to rescind" the immigration order "and replace it with a new, substantially revised" order "to eliminate what the panel erroneously thought were constitutional concerns,” the brief said.

But Washington and Minnesota argued that “briefing on the merits of the preliminary injunction appeal is proceeding on an expedited schedule,” so a rehearing of the case isn't justified, their brief said. “There is no need for en banc review of the panel's interlocutory decision, which correctly stated the standard for obtaining a stay, correctly articulated the controlling legal principles, and properly applied those principles to the facts presented.”

The states think en banc reconsideration of the panel’s order “is unwarranted because the threshold criteria for such extraordinary review are not satisfied” under the 9th Circuit’s rules for “en banc reconsideration of a motions panel order or the broader principles governing en banc review,” their brief said. The panel also “correctly described the standard for obtaining a stay,” and the government didn’t meet it, the brief said. In seeking to stay the TRO, the Trump administration bears “the heavy burden” of showing a strong likelihood of success on the merits of the case, or “the likelihood of irreparable injury if relief is not granted,” it said. “The panel properly concluded that Defendants failed to meet their burden here.”

A 9th Circuit judge who remains unidentified under court procedure made a “sua sponte” request Feb. 10 for holding a vote on whether the three-judge decision should be reheard en banc, said a court media advisory. Neither DOJ nor the states asked for a rehearing and DOJ lawyers in fact said they weren't seeking one, though they used the opportunity of the brief to poke holes in the three-judge decision. If a majority of the active, non-recused judges on the 9th Circuit vote in favor of rehearing en banc, then the case will be reheard by an 11-judge en banc panel, which takes control over the case and holds oral argument before rendering a decision on an emergency stay, the advisory said. If the vote fails, the three-judge panel retains control of the case, it said: “In either event, an order is issued announcing the results, but the votes are not disclosed.”

Meanwhile, CTA President Gary Shapiro thinks it’s a “myth” that immigrants “hurt economic growth” or “steal American jobs,” he said Thursday in a Fortune magazine commentary piece. “Immigrants play a key role in bringing in a new generation of workers to support the growing number of retirees,” said Shapiro. “That’s why developed countries, such as Canada, where birth rates represent only one-third of population growth, actively encourage immigration.” Rather than stealing U.S. jobs, high-skilled immigrants actually “expand the American job market,” Shapiro said.

For every 100 immigrant science, technology, engineering and math workers with postgraduate degrees, “262 jobs are created for native-born citizens,” he said. “And for every 100 H-1B visas issued, 183 jobs are created for native-born citizens,” he said, citing American Enterprise Institute statistics. “Immigrants help make our country what it is -- a dedicated and diverse democracy,” he said. “If we are to welcome them to our shores, we must tackle the challenges that face our system, particularly the employer-sponsored visa system.” Shapiro weeks ago criticized Trump's immigration order as one that "hurts our nation -- both morally and economically -- and runs counter to our country's long-standing values" on immigration (see 1701290001).