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On Jan. 27, President Trump issued Executive Order 13769, 鈥淧rotecting the Nation From Foreign Terrorist Entry Into the United States.鈥� The executive order suspends the entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days; it suspends the United States Refugee Admissions Program for 120 days; it prioritizes refugee claims relating to religious persecution in instances where the refugee is considered a member of a minority religion in the country of his or her nationality; and it suspends the entry of all Syrian refugees indefinitely.

In addition to the confusion and upheaval many of us witnessed on the news and in person at airports around the country, many businesses faced immediate and significant personnel questions. As initially implemented, the executive order applied to individuals with common employment-related visas such as H-1B and L-1 visas, and also to students, individuals with dual nationalities, and lawful permanent residents. Many employers advised employees covered by these categories to avoid international travel, and even United States citizens with dual nationality were encouraged to exercise caution and re-evaluate travel plans. Students were unable to return to their studies, and many businesses had key employees suddenly stranded abroad.

The executive order was quickly subject to a temporary restraining order, which was granted on Feb. 3. A temporary restraining order is a directive from the court relating to short-term implementation of an action or preservation of the status quo. While the opposing parties argue the merits of their relative positions, one party may ask the court to temporarily halt action taken by the opposing party, usually based in large part on the argument that the party will suffer immediate and irreparable harm if they are not given temporary relief from the proposed action, at least until a decision is reached on the ultimate legality of that action.

Here, the state of Washington, joined by Minnesota, filed a lawsuit challenging several sections of the executive order. The states claimed that EO 13769 鈥渦nconstitutionally and illegally stranded (their) residents abroad, split their families, restricted their travel, and damaged the states鈥� economies and public universities.鈥� The state of Washington also argued that the executive order was not directed against terror attacks, but was actually 鈥渋ntended to enact a 鈥楳uslim ban鈥� as the president had stated during his presidential campaign that he would do.鈥� The district court concluded, as a preliminary matter, that the executive order鈥檚 implementation was causing significant harm to a substantial number of people, and that the states were likely to be able to prove that the executive order was unlawful.

The federal government filed an immediate appeal to the United States Court of Appeals for the Ninth Circuit, which issued an executive order upholding the temporary restraining order on Feb. 9. The Ninth Circuit emphasized the states鈥� arguments surrounding injury to their public universities, the harm to their research missions, and their inability to consider attractive student and faculty candidates from the seven listed countries. The court noted that the universities 鈥渞ely on such visiting students, scholars and faculty to advance their educational goals,鈥� and that the states have standing to assert the rights of those individuals affected by EO 13769.

The court also acknowledged that courts generally owe substantial deference to the president and the political branches in relation to immigration and national security policy. However, the federal government had argued that the president鈥檚 decisions in these areas are entirely unreviewable, even if they potentially run afoul of constitutional protections. The court declared that 鈥渢here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy 鈥� neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.鈥�

The Court of Appeals evaluated due process requirements and expounded on the likelihood of due process violations caused by EO 13769. The Fifth Amendment鈥檚 Due Process Clause prohibits the government from depriving individuals of their 鈥渓ife, liberty or property without due process of law,鈥� or without an opportunity to receive notice of the proposed deprivation and to respond against it. These procedural protections are likely violated when lawful permanent residents and non-immigrant visa-holders are denied re-entry to the United States or are prevented from exercising their rights to travel abroad and re-enter the United States.

The court did acknowledge that several days after EO 13769 was issued, 鈥淲hite House counsel Donald F. McGahn II issued 鈥榓uthoritative guidance鈥� stating that sections 鈥� of the executive order do not apply to lawful permanent residents.鈥� However, the court found this to be unreliable, given that the government did not provide 鈥渁uthority establishing that the White House counsel is empowered to issue an amended order superseding the executive order signed by the president 鈥� Moreover, in light of the government鈥檚 shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.鈥�

The court concluded that, in addition to the immediate harm, the government failed to establish that it was likely to succeed on its due process arguments. The court also was swayed by the states鈥� argument that the executive order appears intended to disfavor Muslims, noting that this raised 鈥渟erious allegations and presented significant constitutional questions,鈥� but the court did not address the merits of this argument given the government鈥檚 failure to meet its burden for its request.

As a result of this ruling, EO 13769 will not be enforced while the temporary restraining order is in effect, immigrants and non-immigrants who were affected can enter the United States, and U.S. Customs and Border Protection should be reinstating previously canceled visas. However, there is no guarantee how long this temporary restraining order will be in effect, because the court has the authority to revoke the order at any time.

Shayda Zaerpoor Le is an attorney with Barran Liebman LLP. She advises employers, management and higher education institutions on a wide range of employment issues. Contact her at 503-276-2193 or [email protected].