As detailed in our previous alert on this issue, employers nationwide have recently faced uncertainty regarding the status of their employees as a result of the travel suspensions placed on certain individuals under Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States.” On February 7, 2017, the United States Court of Appeals for the Ninth Circuit heard oral arguments from the United States Government and the attorney general of Washington state relating to whether the court should enter a stay of the nationwide temporary restraining order issued by the Western District of Washington on February 3, 2017.

On February 9, 2017, a three-judge panel of the Ninth Circuit Court of Appeals unanimously denied the Government’s emergency motion for a stay. Specifically, the court held that the Government: 1) did not show a likelihood of success on the merits of its appeal on its arguments about, at least, the states of Washington’s and Minnesota’s procedural due process claim, and 2) did not show that failure to enter a stay would cause irreparable injury. 

Notably, in analyzing whether or not the Government would be irreparably injured absent a stay, the court pointed to the Government’s failure to provide evidence to explain the need for the Executive Order and disagreed with the Government’s position that it has suffered an “institutional injury by erosion of the separation of powers.” Indeed, the court asserted its right to conduct a review of the Executive Order, stating that “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.”

This decision comes as a victory to the 96 businesses that previously filed an amicus brief in support of the States, asserting that the Executive Order’s travel suspension runs afoul of American values by limiting the ability of United States companies to effectively recruit, hire, and retain employees. Many companies have already resumed standard practices in place prior to the issuance of the Executive Order, including assisting individuals from the affected countries to travel to the United States. President Trump has indicated that the Government intends to appeal the decision.