On Thursday, the Ninth Circuit denied the Trump Administration’s request to stay Judge James Robart’s Temporary Restraining Order on the President’s questionable executive order suspending visas and immigration from seven Muslim-majority countries. Considering the 48-hour turnaround between oral argument and the release of the opinion, the Ninth Circuit provided detailed and thoughtful analysis on Washington’s standing to sue, the procedural posture of the case, and the three major constitutional issues that Washington raised. Yet lacking from the 29-page per curiam (unsigned) opinion, was a discussion on 8 U.S.C. § 1882(f), the broad statute that seemingly provides the President unlimited authority to exclude any aliens he deems to be detrimental to the United States.

Some conservatives have jumped on the Ninth Circuit for failing to analyzing the 8 U.S.C. § 1882(f) in considering this case. And rightly so. Courts typically must try to resolve cases on statutory over constitutional grounds. Yet the Ninth Circuit overlooked statutory considerations and relied on the Due Process Clause to uphold the district court’s TRO.

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