858 F.3d 1168
9th Cir.2017Background
- A three-judge Ninth Circuit panel denied the Government’s emergency stay of a district-court temporary restraining order (TRO) enjoining parts of President Trump’s January 27, 2017 Executive Order (the travel ban). The panel’s published order addressed likelihood of success on due process and raised Establishment Clause concerns.
- The Government elected not to press the appeal further, issued a revised Executive Order (Mar. 6, 2017), and moved to dismiss the appeal; the panel granted dismissal and did not move to vacate its published order.
- An active-judge vote to convene the court en banc solely to consider vacating the panel’s stay-denial opinion failed to obtain a majority; the court denied vacatur and rehearing en banc.
- Multiple opinions accompanied the order: concurrences defending the refusal to vacate and emphasizing Article III limits on advisory opinions; several dissents (Kozinski, Bybee, Bea joined by others) argued the panel erred on legal grounds and urged vacatur.
- Core legal disputes highlighted by the opinions: (1) whether the court should vacate a precedential panel opinion after the appeal was mooted by the Government’s voluntary action; (2) the proper standard of judicial review for broad executive immigration policy (invoking Kleindienst v. Mandel and related precedents); (3) standing and due process claims brought by states; and (4) admissibility/use of President’s statements for Establishment Clause analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vacatur of panel opinion after voluntary mootness | Washington (states) did not seek vacatur; panel opinion should remain | Government argued dismissal made appeal moot and did not request vacatur; vacatur ordinarily not warranted when losing party moots case | Court (en banc vote) denied vacatur; panel opinion remains precedential (no majority to vacate) |
| Standard of review for executive immigration policy (Mandel applicability) | States: ordinary constitutional review applies to this broad Executive Order | Government / dissents: Kleindienst v. Mandel (and Fiallo, Din) require judicial deference; courts should not probe facially legitimate, bona fide executive exclusions | No en banc reconsideration; panel’s stay-denial opinion (applying ordinary review in key respects) remains, but dissents argue Mandel governs and panel erred |
| Standing and due process (states asserting residents' rights) | States: proprietary injuries to public universities and third-party standing permit bringing due process claims on behalf of students/scholars | Government / dissents: States cannot assert Fifth Amendment due process rights as parens patriae; third-party standing is inappropriate here | Panel concluded States likely to succeed on procedural due process claims; en banc court declined rehearing—so that conclusion stands as panel precedent subject to future review |
| Use of President’s statements in Establishment Clause analysis | States/district courts: contemporaneous and prior statements by the President relevant to showing discriminatory purpose | Government / dissents: Campaign statements and extrinsic remarks are improper grounds for intent review; courts should limit evidence to materials tied to official policymaking | Panel permitted consideration of extra-record statements; en banc denial left panel language intact; dissents warn this will multiply litigation and chill political speech |
Key Cases Cited
- U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (vacatur ordinarily improper when mootness results from voluntary action of the losing party)
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (when executive action to exclude an alien rests on a ‘‘facially legitimate and bona fide reason,’’ courts generally will not look behind it)
- Fiallo v. Bell, 430 U.S. 787 (1977) (applies Mandel framework to broad immigration policy challenges and emphasizes deference)
- Kerry v. Din, 576 U.S. _ (2015) (plurality/concurrence invoked Mandel as controlling for certain visa-denial due process claims)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) (federal courts lack power to decide issues in absence of a case or controversy)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (courts should not probe executive ‘‘real reasons’’ for national security immigration decisions)
- United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (exclusion of aliens is a fundamental sovereign act and courts defer in this field)