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A summary of the Judgment of the United States Court Of Appeals For The Ninth Circuit in State Of Washington
July 04 2017 0 comment

A summary of the Judgment of the United States Court Of Appeals For The Ninth Circuit in State Of Washington

By the Africa Legal Consulting Team


A summary of the Judgment of the United States Court Of Appeals For The Ninth Circuit in State Of Washington & Anor v. Donald J. Trump, President of the United States & Others

Last week on 09/02/2016, the 9th Circuit Court of Appeals of the United States determined an appeal of the orders given by U.S. District Judge James Robart which suspended Presidents Trump’s travel ban. The ban barred citizens of seven Muslim-majority countries -- Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen -- from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria. Below is commentary on the judgment, highlighting the main legal issues raised by the appeal.

 The ban

On 27/01/2017, the President of the United States issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” Through this order, citizens from seven Muslim-majority countries were banned from entering the US for 90 days; entrance for all refugees was suspended for 120 days whereas entrance of refugees from Syria was halted indefinitely. Two States challenged the Executive Order as unconstitutional and violated federal law, and a federal district court preliminarily ruled in their favor and granted an order suspending the ban, which was subsequently appealed against. The appeal was dismissed on grounds that the appellant had neither shown a likelihood of success on merits upon appeal nor that irreparable harm would occur if a stay of the former order was not granted.


The first issue raised by the appellants was that the district court lacked subject matter jurisdiction because the States have no standing to sue. Without a legal standing, a party has no jurisdiction to present a controversy before a court for resolution, he/she would be viewed as a mere busy body wasting the court’s time. To establish whether a party has standing, the courts consider the interest of the party in the controversy raised, it is necessary that a party has a sufficient “personal stake in the outcome of the controversy”.

Article 3, Section 2 of the US constitution provides that a party must demonstrate that “it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” This provision therefore implies that without a personal violation of rights, a party has no standing thus no jurisdiction. However, under the third party’s standing doctrine, a third party who shows a direct nexus that between his interests and the controversy to be addressed may have standing to institute suit. However, the third party must show that his interests in the controversy are “inextricably bound up with the activity the litigant wishes to pursue” and where the other party is less able to assert their rights.

The states’ main basis of their standing was that schools governed by state law (such as state universities) stood to suffer detrimental effect as students and faculty from the affected countries could not access the nation despite holding valid visas and permits. The court ruled that schools are permitted to assert the rights of their students, rendering the states’ standing in the matter permissible as the interests of the state universities were aligned with those of their students. Flowing from the Executive order, students, researchers and other faculty members could not access the universities or be able to return if they left the country. The court thus held that states had demonstrated their interest in the matter which was traceable to the Executive order hence had the requisite standing.

Executive powers of the President

The Government argued that the President has been given unreviewable authority to suspend the admission of any class of aliens. The Government/Appellants therefore contended that the courts had no powers to review such executive orders, which are vested solely on the sovereign. In their submission therefore, such orders are unreviewable by a judicial organ even when they contravene constitutional rights. This argument raised issues related to the doctrine of the separation of powers, constitutional democracy and the protection of fundamental rights and freedoms.

The court held that it had a duty to interpret the law, including matters challenging the constitutional authority of any arms of the government. In relation to immigration matters, the Court relied on Supreme Court decision which rejected the notion that the political organs have unreviewable authority over the subject, this authority is similarly subject to constitutional limitations. The courts will therefore not hesitate to intervene when constitutionally guaranteed rights are at stake. The court thus held that it had a duty, even when the question related a matter of national security to adjudicate on the constitutional challenges to executive action.

Due process

Pursuant to the Fifth Amendment of the US Constitution, the government is barred from depriving individuals of their “life, liberty, or property, without due process of law.” Due process is anchored on the principle of natural justice, audi alteram partem, which requires that before anyone is condemned, they are provided with a notice and an opportunity to respond. This opportunity provides them with an opportunity to put forth reasons why the intended action should not be taken against them. The question raised in this matter was thus whether the persons affected by the ban had a right to be subjected to due process of the law. The Government’s contention was that immigrants were not protected by the due process clause.

Upon a thorough analysis of the principle, the court held that the procedural requirement of due process applies uniformly to all persons in the US, including unlawful aliens and illegal immigrants. The rights also extend to certain aliens seeking to re-enter the state regardless of whether their presence in America will be temporary or permanent. On the contention that the government had suspended the ban against lawful permanent residents, the court held that a verbal communication by a White House counsel could not suffice to amend an executive order of the President. Even if the court were to recognize this amendment, there would still be a violation of the due process clause as relates to the other immigrants.

The final contention on the likelihood of success of the appeal in relation to due process was that the court erred in issuing an order that protected all immigrants, including unlawful aliens who cold not assert cognizable liberty interests in connection with travelling into and out of the United States and further that the order was directed towards the entire nation yet the matter was brought by two states only. Pertaining to the first issue, the court held on to its earlier finding that all persons were entitled to due process under the Fifth Amendment.

On the geographic scope of the order, the court declined limit it citing that doing this would “run afoul of the constitutional and statutory requirement for uniform immigration law and policy.” In addition, the court held that it was not within their mandate to amend or re-write the executive order. That is reserved to the political organ responsible for making of the order.

Religious Discrimination and the Establishment clause

The First Amendment to the Constitution of the US prohibits any “law respecting an establishment of religion.” The implication of this is that any law with a religious purpose violates this clause as does any law that prefers one religious denomination over another. All persons are entitled to equal treatment before the law, regardless of their religion. The rationale behind this amendment has been explained thus, “endorsement of a religion “sends the ancillary message to . . . non-adherents ‘that they are outsiders, not full members of the political community.” By the order targeting Muslim majority countries, the states submitted that it violated the Equal Protection Clause.

 The court discussed the establishment clause and religious discrimination, noting that the states challenging the executive order had tendered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.’ And it said, rejecting another administration argument, that it was free to consider evidence about the motivation behind laws that draw seemingly neutral distinctions. However, the court reserved their comments on the religious discrimination until such a time when the appeal would be heard on its merits.

Public Interest

The executive order had sparked off debates all over the world, particularly due to the high numbers of persons affected. The court therefore had to balance the hardships encountered by those affected by the ban against the public interest. Protection of the nation from threats and acts of terrorism is a primary objective of the government, however, the court held that the government had not shown how any of the aliens locked out of the country was a threat to the nation. It noted the hardships encountered by victims of the ban, some of which were irreparable.

The court considered the public interest in the matter, which was two-sided. It favored both parties in that national security and the executive powers of the president to enact policies were a matter of public interest as was the public’s interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. Balancing the hardships against the competing public interest raised in the matter, the court declined to grant the stay of the orders of the former court.


Upon consideration of all the arguments and the legal issues raised, the court declined to grant stay as prayed by the Appellant. The court’s decision was guided by for main factors which have been discussed in detail above. These are:

(1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

 (2) Whether the applicant will be irreparably injured absent a stay;

(3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) Where the public interest lies.

The court held that the Government (Applicant) had failed to meet the legal standards necessitating a stay in line with the factors outlined above. 

In case you need more information on the above changes, please contact the Africa Legal Consulting team on This email address is being protected from spambots. You need JavaScript enabled to view it.

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