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State of Washington v. Trump

United States Court of Appeals, Ninth Circuit

March 17, 2017

DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants.

         Western District of Washington, Seattle D.C. No. 2:17-cv-00141

          Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges.


         This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 2017. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (holding that the "extraordinary remedy of vacatur" is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party).

         This order is being filed along with a concurrence from Judge Reinhardt, a concurrence from Judge Berzon, a dissent from Judge Kozinski, a dissent from Judge Bybee, and a dissent from Judge Bea. No further opinions will be filed.

          REINHARDT, J., concurring in the denial of en banc rehearing:

         I concur in our court's decision regarding President Trump's first Executive Order - the ban on immigrants and visitors from seven Muslim countries. I also concur in our court's determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.

         Judge Kozinski's diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court's decision with respect to President Trump's first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court. That is hardly the way the judiciary functions. Peculiar indeed!

          BERZON, J., concurring in the denial of reconsideration en banc.

         I concur in the court's denial of rehearing en banc regarding vacatur. I have full confidence in the panel's decision. I write to emphasize that, although one would think otherwise from the three dissents from denial of rehearing en banc, judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either. In other words, all the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.

         Here is the background: A three-judge panel of this court decided that the Government was not entitled to a stay pending appeal of the district court's Temporary Restraining Order enjoining enforcement of the President's January 27, 2017 Executive Order. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017). The Government chose not to challenge the panel's order further but instead to draft a revised Executive Order, revoking the one that was before this court's panel. Exec. Order 13780 of March 6, 2017 §§ l(i), 13, 82 Fed. Reg. 13209 (published Mar. 9, 2017). That Order was expressly premised on the panel opinion. Id. § 1(c), (i). The Government has since elected to dismiss this appeal, and with it its stay request; it filed an unopposed motion to dismiss, which we granted, and did not in that motion ask that the panel, or an en banc court, vacate the panel's opinion.[1]

         So there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the original restraining order. "In our system of government, courts have no business deciding legal disputes or expounding on law in the absence of . . . a case or controversy." Already, LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013) (internal quotation marks omitted) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)).

         One judge of the court nonetheless called for a vote of the active judges as to whether to convene an en banc court for the sole purpose of vacating the panel's opinion. As the panel's March 15, 2017 order, denying rehearing en banc, notes, vacating an opinion where the losing party's voluntary actions have mooted the appeal is ordinarily improper. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25-27 (1994); United States v. Payton, 593 F.3d 881, 883-86 (9th Cir. 2010). And as Judge Bybee's dissent reflects, the only justification offered for vacating the opinion was a disagreement on the merits.

         It is simply not an "exceptional circumstance[]" justifying the "extraordinary remedy of vacatur" that members of our court disagree with a panel opinion. See Bonner Mall, 513 U.S. at 26, 29. I am aware of no instance in which we have convened an en banc panel to vacate a precedential opinion on the basis of its merits, where no party seeks further appellate review or vacatur. Compare Animal Legal Def. Fund v. Veneman, 490 F.3d 725, 725-27 (9th Cir. 2007) (en banc) (Bybee, J., concurring) (vacating a panel opinion in light of a settlement agreement dependent on vacatur reached after a majority of the court already had voted to take the case en banc and designated the panel's opinion non-precedential). Rather, it is "inappropriate . . . to vacate mooted cases, in which we have no constitutional power to decide the merits, on the basis of assumptions about the merits." Bonner Mall, 513 U.S. at 27.

         We as a court make the vast majority of our decisions through three-judge panels, and we abide by the decisions of those panels absent a decision by a majority of the active judges that there is good reason to reconsider the case with a larger, eleven-judge panel, determined by lot. See Fed. R. App. P. 35; Ninth Cir. R. 35-3; Ninth Cir. Gen. Order 5.1-5.5. Reconsidering a case before an en banc panel after full argument and coming to a new, reasoned decision-which might reach the same result as the earlier panel decision or might conclude otherwise-is an entirely different matter from what was sought here: wiping out the panel's decision and leaving a vacuum. The en banc court would have no authority whatever to opine on the merits of the case or the propriety of the district court's stay, as there is simply no live appeal before us.

         Article III of the United States Constitution precludes us from revisiting the issues addressed in the panel opinion at this point, as any decision rendered by the en banc court necessarily would be advisory. See Already LLC, 133 S.Ct. at 726. A few dissenting colleagues have nonetheless used the decision by the active judges of the court to decline to rewrite history as the occasion to attack the panel opinion on myriad grounds. As there is nothing pending before us, it would be entirely inappropriate to respond in detail-which, I presume, is precisely why the panel did not do so.

         In some ways that is too bad. There is much to discuss, and such discussion would show that the panel's opinion was quite correct.

         To take but one example: The cases Judge Bybee cites regarding the applicability of Kleindienst v. Mandel, 408 U.S. 753 (1972), do not govern the case as it came to the panel. None addresses whether the "facially legitimate and bona fide reason" standard articulated in Mandel applies to executive action that categorically revokes permission to enter or reenter the country already granted by the Executive Branch. See Kerry v. Din, 135 S.Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the judgment); Fiallo v. Bell, 430 U.S. 787, 792-95 (1977); Cardenas v. United States, 826 F.3d 1164, 1171-72 (9th Cir. 2016); An Na Peng v. Holder, 673 F.3d 1248, 1258 (9th Cir. 2012); Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th Cir. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065-66 (9th Cir. 2003); Noh v. INS, 248 F.3d 938, 942 (9th Cir. 2001). That the Second Circuit applied Mandel's test to a program requiring certain non-immigrants to provide information to authorities (and to face removal only after undergoing "generally applicable legal [removal] proceedings to enforce pre-existing immigration laws"), see Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008), in no way portends that application of Mandel was appropriate here. The question before our panel, unlike the one in Rajah, concerned a sweeping Executive Order that barred from entry whole groups of legal permanent residents and visa holders, among many others, without any individualized determination regarding the revocation. Presumably recognizing the weight of these individuals' constitutional interests, the President excepted them from the revised Executive Order. See Exec. Order 13780 § 3.

         Judges Kozinski and Bea likewise used the filing of the order denying rehearing en banc as to the question of vacating the panel opinion as a platform for providing their personal views as to the merits of that opinion. Both concern themselves with issues the panel expressly did not finally resolve. See Bea, J., dissenting from denial of rehearing en banc, at 3-6 (discussing parens patriae standing); Kozinski, J., dissenting from denial of rehearing en banc, at 3-7 (discussing the Establishment Clause); Washington, 847 F.3d at 1161 n.5, 1168 (explicitly declining to reach the questions of parens patriae standing and, after outlining the parameters of the appropriate Establishment Clause analysis, not coming to rest on the likelihood of success with respect to that issue). Further, Judge Kozinski expresses at some length his unhappiness with the invocation of the panel's Establishment Clause analysis in a recent district court order, once again venturing an opinion on an appeal not before us-in this instance, not because the appeal was withdrawn but because none has yet been filed.[2]

         There will be ample opportunity, and probably soon, see Order Granting Motion for Temporary Restraining Order, Hawaii v. Trump, No. 1:17-cv-00050 DKW-KSC (D. Haw. Mar. 15, 2017), for further review of the important issues raised by the President's Executive Orders. And it is apparent from the Government's delay in promulgating a new Executive Order, and in the ten-day delay in implementation within the revised Order, see Exec. Order 13780 § 14, that no overwhelming exigency counsels in favor of abandoning the ordinary process of adversarial appellate review.

         I well understand the importance of the cases concerning these Executive Orders. They raise critical questions concerning the reach of executive and judicial authority, and they could profoundly affect the lives of our citizens, our communities, and our position in the world. It is their very seriousness that, in my view, commands that we as judges speak about them when we have authority to do so, which is when we are asked by litigants to settle a dispute. The court at large has not been asked. So my dissenting colleagues should not be engaging in a onesided attack on a decision by a duly constituted panel of this court.

         We will have this discussion, or one like it. But not now.

          KOZINSKI, Circuit Judge, with whom Circuit Judges BYBEE, CALLAHAN, BEA and IKUTA join, dissenting from the denial of reconsideration en banc.

         I write separately to highlight two peculiar features of the panel's opinion. First, the panel's reasoning rests solely on Due Process. But the vast majority of foreigners covered by the executive order have no Due Process rights. Nevertheless, the district court enjoined the order's travel provisions in their entirety, even as applied to the millions of aliens who have no constitutional rights whatsoever because they have never set foot on American soil. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001); United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990). In short, the panel approves the district court's nationwide injunction using a rationale that applies to a small percentage of those covered by the President's order.

         The panel itself seems to acknowledge this strange state of affairs when it notes that there "might be persons covered" by the district court's restraining order who have no Due Process claims. Panel Order at 23. "Might" indeed! The overwhelming majority of the hundreds of millions of people covered by the order lack Due Process claims; only a tiny proportion have been accorded lawful status. Yet the panel offers no explanation for allowing the district court's extraordinarily broad restraining order to stand in full. This St. Bernard is being wagged by a flea on its tail.

         Because we have an obligation to maintain as much of the order as is legal, we normally ask: Can we keep it operational in a way that avoids constitutional conflict? The law of our circuit is that we consider the severability of an executive order just as we would consider the severability of a statute. See Matter of Reyes, 910 F.2d 611, 613 (9th Cir. 1990); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (assuming without deciding that the same severability analysis applies to executive orders as to statutes).[1] If we applied this framework to the executive order, we would "refrain from invalidating more of the [order] than is necessary" and "maintain the [order] in so far as it is valid." Regan v. Time, Inc., 468 U.S. 641, 652 (1984). This would have been easy: We could have approved the injunction as to the relatively few who have lawful status in the United States and allowed the executive order to cover everyone else. This workable solution would have respected the President's prerogative to regulate immigration as delegated to him by 8 U.S.C. § 1182(f), a provision about which the panel says nothing.

         Which brings me to the second peculiar feature of the opinion, a topic about which the panel says all too much: the Establishment Clause. While its opinion does not come to rest on this issue, the panel still sows chaos by holding "that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims." Panel Order at 25. This matters because one Establishment Clause test requires a showing of secular purpose, [2] and the panel gives its imprimatur to considering the "numerous statements by the President" about Muslims, most of them made before he was elected or took office. Id. This holding has continued vitality: It was relied on only days ago by a district judge in Hawaii who, in the ongoing contretemps between our circuit and the executive, enjoined the President's new executive order nationwide. See Hawaii v. Trump, No. 17-00050 DKW-KSC (D. Haw. Mar. 15, 2017) (order granting temporary restraining order). Indeed, this holding is spreading like kudzu through the federal courts. See Int'l Refugee Assistance Project v. Trump, No. 17-00361-TDC, at 5, 29 (D. Md. Mar. 16, 2017).

         Taking a cue from the panel's opinion and citing a trove of informal and unofficial statements from the President and his advisers, see Hawaii at 33-37, the district judge found that plaintiffs had shown "a strong likelihood of succeeding on their claim" that the new order violates the Establishment Clause, id. at 41. And why shouldn't he? After all, the panel made this evidentiary snark hunt the law of the Ninth Circuit; the district judge was (in his own word) "commanded" to follow it. Id. at 32.

         This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory.[3] No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub's only intention is to get elected. No Supreme Court case-indeed no case anywhere that I am aware of-sweeps so widely in probing politicians for unconstitutional motives.[4] And why stop with the campaign? Personal histories, public and private, can become a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day.

         This path is strewn with danger. It will chill campaign speech, despite the fact that our most basic free speech principles have their "fullest and most urgent application precisely to the conduct of campaigns for political office." McCutcheon v. Fed. Election Comm'n, 134 S.Ct. 1434, 1441 (2014) (citation and internal quotation marks omitted). And it will mire us in a swamp of unworkable litigation. Eager research assistants can discover much in the archives, and those findings will be dumped on us with no sense of how to weigh them. Does a Meet the Press interview cancel out an appearance on Face the Nation? Does a year-old presidential proclamation equal three recent statements from the cabinet? What is the appropriate place of an overzealous senior thesis or a poorly selected yearbook quote?

         Weighing these imponderables is precisely the kind of "judicial psychoanalysis" that the Supreme Court has told us to avoid. McCreary County v. ACLU of Ky., 545 U.S. 844, 862 (2005). The hopelessness of this weighing exercise is why the Supreme Court has never "deferred to comments made by [government] officials to the media." Hamdan v. Rumsfeld, 548 U.S. 557, 623-24 n.52 (2006). And it's why the panel's case citations for the supposedly "well established" proposition that the President's informal statements are admissible, upon closer inspection, turn out to refer to a much more limited universe: the text of city council resolutions, early drafts of legislation, transcripts of legislative discussions and contemporaneous statements by legislative members. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-35 (1993); Larson v. Valente, 456 U.S. 228, 254 (1982); Vill. of Arlington Heights v. Metro Housing Dev. Corp., 429 U.S. 252, 268 (1977). Limiting the evidentiary universe to activities undertaken while crafting an official policy makes for a manageable, sensible inquiry. But the panel has approved open season on anything a politician or his staff may have said, so long as a lawyer can argue with a straight face that it signals an unsavory motive.

         Even if a politician's past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result-namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate. If a court were to find that campaign skeletons prevented an official from pursuing otherwise constitutional policies, what could he do to cure the defect? Could he stand up and recant it all ("just kidding!") and try again? Or would we also need a court to police the sincerity of that mea culpa-piercing into the public official's "heart of hearts" to divine whether he really changed his mind, just as the Supreme Court has warned us not to? See McCreary, 545 U.S. at 862.

         This is yet another reason my colleagues err by failing to vacate this hasty opinion. The panel's unnecessary statements on this subject will shape litigation near and far.[5] We'll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster.

          BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

         I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel's opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that ...

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