Hours after taking office in 2025, President Trump signed an executive order barring the entry of all refugees, even those who were already approved for admission and in transit to the United States. Plaintiffs sued, and the district court issued a preliminary injunction, holding that this order violated the Immigration and Nationality Act passed by Congress.
Today, the Ninth Circuit reverses almost the entirety of the district court's order. No more refugees, unless and until President Trump feels like it. (Which you know full well ain't gonna be anytime soon.)
I found it interesting that the opinion both begins and ends by empathizing that policy concerns are not relevant to the appeal. At the outset: "Our task is to determine whether the President’s actions were within the statutory authority granted him under the INA. Whether we agree with those actions is beside the point: “The wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993)." In the conclusion: "We recognize the enormous practical implications of this decision. There are over one hundred thousand vetted and conditionally approved refugees, many of whom may have spent years completing the USRAP process in a third country only to be turned away on the tarmac. . . . Whether that consequence reflects prudent policy is not a question for this court. To hold otherwise would be to substitute our judgment for Congress’s."
You see this point made in various opinions. It's most powerful, in my view, when the judges who join the opinion are in obvious disagreement with the policy at issue, and yet are compelled by their limited role in our constitutional system to uphold the act at issue.
By contrast, here, the opinion is authored by Judge Bybee, and joined by Judges Clifton and Lee. Two Bush appointees and one appointed by President Trump himself. (Judge Lee even authors a separate opinion to both go further than the majority in reversing the district court's preliminary injunction as well as to decry alleged judicial activism. ("We [] must not be seduced by the temptation of judicial resistance: District courts cannot stand athwart, yelling “stop” just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise. Otherwise, we risk inching towards an imperial judiciary that lords over the President and Congress.")
The "We're just doing our jobs, even if we don't like it" is a lot less compelling when the underlying policy is one that generally comports with your political position. If Judge McKeown, for example, were to write this particular opinion and make that proclamation, well, that'd mean a lot to me. Or if Judge Bybee were to write an opinion reaffirming Hawaii's right to restrict the open carry of firearms -- which he in fact did -- again, that appeal to ignore a judge's own political preferences would similarly carry a lot of weight.
Today's opinion, written by three conservative Republican appointees on an immigration issue? Not so much.
