Although the court was only ruling on whether the executive order should be reinstated, the language of the opinion is sweeping.
1) Most importantly, the broad ruling makes clear that the Trump administration failed to convince the court that national security concerns justified a reinstatement of the ban.
“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.”
In a footnote, the court added:
“Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.”
2) At oral arguments, the lawyer for the government said he thought the executive order was “unreviewable,” but the order eviscerates that notion.
“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.”
3) The government also argued that the states challenging the order — Washington and Minnesota — had not shown that they had the legal right, or standing, to bring the case in the first place. But the court pointed to the fact that public universities suffered because some of their visiting scholars were unable to enter the United States.
“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order.”
4) After the executive order was issued, White House counsel Donald F. McGahn issued guidance saying that key parts of the order did not apply to lawful permanent residents. But the court said it could not rely upon that order.
“The White House counsel is not the President, and he is not known to be in the chain of command of any of the Executive Departments. … We cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.”
5) Finally, the court said it needed to balance the interests of the public. It acknowledged the importance of national security but finally sided with the states.
“The public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”