"We hold that the Government has not shown a likelihood of success on the merits of its appeal,
nor has it shown that failure to enter a stay would cause irreparable injury."
Highlights of the decision (or stuff Trump will be tweeting about later)
Any emphasis is mine
On Standing:
We therefore conclude that the States have alleged harms
to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most
two logical steps: (1) the Executive Order prevents nationals
of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people 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. 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. We therefore hold that the States have standing.
Reviewability of the Executive Order:
Instead, the Government has taken the position that the
President’s decisions about immigration policy, particularly
when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene
constitutional rights and protections. The Government
indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive
actions such as this one.
There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy.
In short, although courts owe considerable deference to
the President’s policy determinations with respect to
immigration and national security, it is beyond question that
the federal judiciary retains the authority to adjudicate
constitutional challenges to executive action.
On Due Process:
The Government has not shown that the Executive Order
provides what due process requires, such as notice and a
hearing prior to restricting an individual’s ability to travel.
Indeed, the Government does not contend that the Executive
Order provides for such process. Rather, in addition to the
arguments addressed in other parts of this opinion, the
Government argues that most or all of the individuals
affected by the Executive Order have no rights under the Due
Process Clause.
The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States.
Rather than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all.
We disagree, as explained
above.
On Harm:
The Government suggests that the Executive Order’s
discretionary waiver provisions are a sufficient safety valve
for those who would suffer unnecessarily, but it has offered
no explanation for how these provisions would function in
practice: how would the “national interest” be determined,
who would make that determination, and when? Moreover,
as we have explained above, the Government has not
otherwise explained how the Executive Order could
realistically be administered only in parts such that the
injuries listed above would be avoided.
This is about to get really interesting. . . .
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
edited to add link to full opinion
= new reply since forum marked as read
