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Ninth Circuit Can’t Stop Won’t Stop

Ninth Circuit Can’t Stop Won’t Stop

On Monday, the Ninth Circuit surprised no one and refused the federal government a stay pending appeal of the preliminary nationwide injunction of President Trump’s “Health Care Ban”, or Suspension of Immigrants Who Will Financially Burden the United States Health Care System. The U.S. District Court in Portland had issued an injunction on the rule on November 26, 2019. In implementing a stay, the federal government hoped to immediately implement the President’s October 4th proclamation, which requires impending immigrants to the United States to prove that they have a certain type of health care coverage, or that they can pay for healthcare out of pocket, in order to enter the United States.

Reflecting the chaos that is our current political climate, many partisan and non-partisan groups filed amici briefs. To the Court’s credit, it considered briefs from severn (7) groups: the American Medical Association, CASA, Disability Rights California, two immigration law professors, the National Health Law Program, several states and cities (21 states, DC, and NYC), and health policy experts.

Most of the Court’s analysis centered around its accepted definition of “irreparable harm.” In its reasoning, the Court found that: 1) the government’s harm as presented is not irreparable; 2) the government failed to prove that allowing uninsured immigrants to enter the U.S. would burden the U.S. healthcare system; and 3) the harm asserted by the government would be purely monetary, an injury which the Court does not consider to be irreparable. The panel did, however, find the Plaintiffs’ potential harm to be irreparable: prolonged separation from family members. The panel could have ended its analysis there.

But Ninth Circuit can’t stop won’t stop. The Court further opined that the federal government had failed to show a strong likelihood of success on the merits. Nor had the government shown a strong likelihood of success on the Plaintiff’s claim that the President Proclamation conflicts with VAWA, the Affordable Care Act, and the “public charge” provision of the INA. Plus, the Plaintiffs were likely to succeed on their contention that the Presidential Proclamation is not viable under 8 U.S.C. Section 1182(f) because: 1) the perfunctory time limits do not comport with the statute; and 2) the statute does not give the President limitless power based on economic interests only.

According to the Court, the Plaintiffs aren’t the only ones that would be irreparably harmed. One mustn’t forget twenty-one (21) American states, the District of Columbia, and the City of New York, all of whom filed amici briefs. Plus there’s the public interest, which lies in maintaining the status quo of the U.S. immigration system while the appeal is pending.

Last, but certainly not least, the Court found that the district court had not erred in granting the injunction nationwide. The class in this case is nationwide, and so must the injunction be.

Stay tuned for the continuing firestorm that is U.S. politics, as clearcut as your shampoo routine: Step 1. Issue presidential proclamation or executive order; Step 2. File complaint in federal court; Step 3. appeal, appeal, appeal; 3. Repeat. Throw in some motions for injunction and stay for funsies.

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