William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges; Motion for Stay of an Order of the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding
"In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."
"Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by the White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."
"The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a 'Muslim ban' as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of that order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. . . . The States' claims raise serious allegations and present significant constitutional questions."
"The Government has pointed to no evidence that any aliens from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above."
"By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple 'other parties interested in the proceeding.'"
"For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED."