Why the injunction against the travel ban will hold up in Supreme Court

On Monday, Virginia-based Federal Judge Leonie Brinkema issued a carefully crafted and well-reasoned opinion in support of her preliminary injunction against the travel ban announced by President Trump. As a result, her order is much more likely to be upheld by the Supreme Court than the order issued by District Judge James Robart and upheld by the Ninth Circuit last week.

Judge Brinkema’s order differs from Judge Robart’s order in several important respects. First, it is a preliminary injunction rather than a temporary stay. A preliminary injunction has a more formal status than a temporary stay. It is also more durable. It lasts until either it is reversed by a higher court or it is rendered moot by a decision on the merits of the dispute.

Judge Brinkema’s order is also narrower in scope than Judge Robart’s order. It applies only in Virginia, and it does not apply to refugees. Those characteristics of Judge Brinkema’s order render it both more likely to reach the Supreme Court and less vulnerable to attacks based on the court’s jurisdiction.

Judge Brinkema’s opinion in support of her order relies on reasoning that is much more likely to be embraced by the Supreme Court than the Ninth Circuit’s opinion that upheld Judge Robart’s order. Like the Ninth Circuit, Judge Brinkema explains convincingly why the travel ban order can be reviewed by a court and why the state—Virginia, in this case—has standing to obtain review of the order. However, her reasoning on the critical question of the likelihood that the state will prevail on the merits differs completely from the reasoning of the Ninth Circuit.

The Ninth Circuit reasoned that the states—Washington and Minnesota, in that case—were likely to prevail by persuading a court that the order violates the procedural due process rights of the 60,000 to 100,000 people who were adversely affected by the order. The Supreme Court is unlikely to uphold an order that is based on that reasoning.

In its 1915 opinion in Bi-Metallic Investment Co. v. State Board of Equalization, the Supreme Court held that due process does not provide a right to any type of hearing when the government takes an action that adversely affects a large group of people as opposed to an action that singles out an individual for adverse treatment.

As the high court explained, “Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption … [The rights of the group] are protected in the only way they can be in a complex society, by their power, immediate or remote, over those who make the rule.”

The Ninth Circuit’s reasoning is squarely inconsistent with the Supreme Court’s holding and reasoning in the Bi-Metallic case.

Judge Brinkema relies instead on the First Amendment’s guarantee of freedom of religion to support her order—an issue the Ninth Circuit declined to address. She quoted many statements that President Trump made before, contemporaneously with, and even after he issued the travel ban order in which he referred to it as a Muslim ban.

She combined that evidence of intent with the federal government’s refusal to offer any evidence in support of its claimed national security rationale for the travel ban to support her conclusion that the ban unconstitutionally targets Muslims. In her words, “the overwhelming evidence shows that this ban was conceived in religious bigotry.”

Judge Brinkema’s reasoning in support of her order is likely to resonate with all of the justices of the Supreme Court. No judge or justice is likely to have any sympathy for a travel ban that is motivated by religious bigotry.

Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. His work been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.

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