Real Drama for Travel Ban Will Be at Appeals Court

Hawaii's ruling against Trump's second executive order is headed to the circuit where judges are still arguing over the first.

No ban at the airports yet.

Photographer: Sandy Huffaker/AFP/Getty Images

As the saga of President Donald Trump’s ban on travel to the U.S. from six majority-Muslim countries unfolds, a federal judge in Honolulu on Wednesday blocked the operation of the second version of the executive order nationwide. The decision rests on the logic that the second iteration is the same old wine in a new bottle. As a Muslim ban, the court ruled, the executive order violates the establishment clause of the Constitution by sending a message to Muslims that they are disfavored members of the political community.

The stage is now set for a replay at the U.S. Court of Appeals for the 9th Circuit, which upheld the blockage of the first ban by a federal judge in Seattle. If the appeals court thinks it’s sufficiently similar to the first case, it might even go back to the same three judge panel. That bodes ill for Trump. Meanwhile at the 9th Circuit, five other judges have taken the unusual step of saying the original panel decision was wrong. This case is just getting started.

The Hawaii district court decision by Judge Derrick K. Watson mostly followed the blueprint I anticipated while the new executive order was under contemplation and after it was issued. The judge mentioned specifically that Trump’s second order referred to his first. The court noted Trump’s comments on the Christian Broadcast Network about prioritizing the entry of Christians as well as adviser Rudy Giuliani’s claim to have been asked by Trump to make the Muslim ban legal.

In the key line of the opinion, the judge asserted that what he called the “unique” record in the case “includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”

There is one subtle doctrinal twist. The most important precedent involving unconstitutional religious motivation, Lukumi Babalu Aye v. City of Hialeah, is based on a violation of the free exercise clause of the Constitution, which protects citizens’ rights to freely practice their religion. Yet the Hawaii court relied on the establishment clause to block the law.

Specifically, the court said that the law violated Justice Sandra Day O’Connor’s endorsement test: that the government may not send “a message to nonadherents [of a given faith] that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

Logically, a law or executive order enacted with religious animus toward Muslims would presumably send such a message. But there’s no clear precedent that says so.

The Hawaii judge is therefore running together the two different religion clauses of the Constitution. That’s a defensible thing to do on these facts, but it would have been good for him to acknowledge that or else cite both parts of the constitutional guarantee of religious liberty.

Details matter, because the 9th Circuit will probably have to hear an appeal pretty soon. Whether the same panel will hear it depends on an obscure 9th Circuit rule of federal appellate procedure, Rule 28-2.6(c). Appealing parties have to specify whether their appeal is related to another case, which would ordinarily send it to the same panel.

According to the rule, “cases are deemed related if they … raise the same or closely related issues as cases previously heard by the court.”

Of course, whether the issues raised by the second executive order are closely related to the first is itself a contentious question -- one on which the outcome of the case might depend. The judge in Hawaii clearly thought the issues were so related that they are nearly identical. The Trump administration will maintain that they aren’t.

Thus, even before hearing the appeal, the 9th Circuit will have to determine whether the same panel will consider it -- and that might provide a broad clue about the potential outcome of the case. 1

That’s not all. On Wednesday, the same day the Hawaii judge issued his decision, five judges of the 9th Circuit issued a dissent from denial of rehearing en banc of the first order.

What made that unusual is because the first executive order has been superseded by the second, the court usually wouldn’t bother to rehear the question of its legality. Indeed, that issue is probably moot.

Yet Judge Jay Bybee wanted the court rehear the case in order to vacate the panel’s decision, which he considers bad law. His opinion laid out in detail what the government’s brief should be this time -- perhaps because Bybee was dissatisfied with the Department of Justice’s lackluster briefing the last time around.

Bybee’s analysis is powerful and deserves its own treatment. But it’s worth noting briefly that he didn’t thoroughly consider the view that the ban violates the establishment clause rights of Muslims living in the U.S., which is what the Hawaii judge thought.

It’s also important to note that Bybee went out of his way to rebuke Trump for attacking the Seattle judge and the 9th Circuit panel. The “personal attacks,” he wrote, “were out of all bounds of civic and persuasive discourse—particularly when they came from the parties.” The attacks “treat the court as though it were merely a political forum. … The courts of law must be more than that, or we are not governed by law at all.” 2

Bybee is right about that. Now his court will have the task of deciding whether the kind of animus Trump has been directing at its judges taints his executive order on immigration. It’s going to be interesting.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. Ordinarily, the question of relatedness isn’t a major national issue. In this instance, it's not impossible that there might be a fight within the 9th Circuit about what panel should hear the case.

  2. In the dissent, Bybee went out of his way to say that he wasn't impugning his colleagues who were working under a tight schedule with "the most intense public scrutiny of our court that I can remember." That's interesting given that Bybee led the Justice Department's Office of Legal Counsel for a period under George W. Bush and was intensely criticized for the torture memos he signed, which were also produced under their own form of presidential pressure and time constraints.

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