State of Washington, et al v. Donald J. Trump, et al

Filing 191

Filed Order for PUBLICATION Amending Order Filed 3/15/17 (WILLIAM C. CANBY, RICHARD R. CLIFTON and MICHELLE T. FRIEDLAND) (Concurrence by Judge Reinhardt, Concurrence by Judge Berzon, Dissent by Judge Kozinski, Dissent by Judge Bybee and Dissent by Judge Bea - (SEE ATTACHED FOR FULL TEXT)) 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. [10362285]--[Edited: Attached Webcite. 03/24/2017 by RY] (RMM) [Entered: 03/17/2017 05:57 PM]

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 1 of 7

FILED
Washington v. Trump, No. 17-35105

MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 2 of 7

page 2
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.
1

Indeed, we know that this executive order can be severed because the
district court did precisely that: It enjoined the five subsections of the executive
order relating to travel and left the other eleven intact. Washington v. Trump, No.
C17-0141JLR, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017) (order granting
temporary restraining order).

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 3 of 7

page 3
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

2

I don’t endorse Lemon v. Kurtzman, 403 U.S. 602 (1971), as the
appropriate test in this context. Like Judge Bybee, I am puzzled why Lemon
should be plucked from domestic contexts and applied to laws affecting
immigration. See Bybee Dissental at 8 n.6. If we apply this test so casually to
immigration policy, I see no reason it should not apply to every foreign policy
decision made by the political branches, including our dealings with various
theocracies across the globe. I see many reasons to resist this gross intrusion of the
judicial power into foreign affairs.

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 4 of 7

page 4
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

3

There is an anecdote, doubtless apocryphal, about Franklin Roosevelt
during a whistlestop tour. He had two speeches that took opposite positions on a
hot-button issue of the day. When the train stopped at a town that favored the
issue, he would give his “pro” speech. And in towns that opposed the issue he’d
give his “con” speech. One day he approached a town that his advisors told him
was divided evenly between the pros and cons. FDR’s advisers worried about how
he’d handle the situation, but FDR was undaunted. He gave a speech and when he
was done the pros in the audience believed he was in their corner and the cons
were convinced he agreed with them. And that, friends, is the nature of electoral
politics.

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 5 of 7

page 5
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
4

Respect for a coordinate branch should also counsel against focusing on
campaign statements. Candidate Trump, unlike President Trump, had not taken an
oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, cl.
8, and was not bound to “take Care that the Laws be faithfully executed,” id. art. II,
§ 3.

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 6 of 7

page 6
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

Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-4, Page 7 of 7

page 7
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.

5

Contrary to the claims of Judges Reinhardt and Berzon, the substance of
the panel’s opinion continues to be highly relevant. Because the panel has refused
to vacate it, the opinion continues to be the law of the circuit and is being followed
by courts in the circuit and elsewhere. My criticism bears directly on the mistake
our court has made in failing to vacate the opinion, and will hopefully warn other
courts away from similar errors. My colleagues’ effort to muzzle criticism of an
egregiously wrong panel opinion betrays their insecurity about the opinion’s legal
analysis.