Appeals Court Refuses to Reinstate Trump Travel Ban

NEW YORK, NY - JANUARY 28: Protestors rally during a protest against the Muslim immigration ban at John F. Kennedy International Airport on January 28, 2017 in New York City. President Trump singed the controversial executive order that halted refugees and residents from predominantly Muslim countries from entering the United States. (Photo by Stephanie Keith/Getty Images)

WASHINGTON D.C. — President Donald Trump’s travel ban will remain blocked, a federal appeals court ruled Thursday.

The unanimous ruling from a three-judge panel means that citizens of seven majority-Muslim countries will continue to be able to travel to the US, despite Trump’s executive order last month.

It is a significant political setback to Trump’s new administration and raises questions about how the courts will view his apparent vision for an expansive use of executive power from the Oval Office on which he is anchoring the early weeks of his presidency.

“The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States,” the judges wrote.

“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.”

The judges added that while “the public has a powerful interest in national security and in the ability of an elected president to enact policies… the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

Trump immediately tweeted his reaction to the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

“It’s a political decision, we’re going to see them in court, and I look forward to doing that,” Trump told reporters in the White House Thursday. “It’s a decision that we’ll win, in my opinion, very easily.”

Trump’s presidential rival Hillary Clinton celebrated the decision, tweeting simply “3-0.”

The states of Washington and Minnesota had challenged the ban.

“Bottom line, this is a complete victory for the state of Washington,” said state Attorney General Bob Ferguson. “The 9th Circuit Court of Appeals in a unanimous decision effectively granted everything we sought.”

Washington state Solicitor General Noah Purcell, who argued the case, responded to Trump’s tweet on CNN’s “Erin Burnett OutFront.”

“The irony from our perspective is that we’ve seen him in court twice now, and we’ve won both times. It’s not like it doesn’t count until you get to the Supreme Court,” Purcell said.

The Justice Department is reviewing the decision, it said in a statement.

But given that the Supreme Court currently lacks its ninth member, there a real chance of a 4-4 split on the bench along ideological lines, which would have the effect of affirming the ruling of the 9th Circuit, inflicting a more permanent blow to the new administration.

Fight over executive power

The legal drama over the immigration executive order was the first episode in what could be a series of legal challenges to Trump’s governing style and agenda and represents the first confrontation between his White House and the checks and balances of the American political system.

The judges addressed each of the Justice Department’s proffered reasons for reinstating the ban in great detail and rejected them all.

Perhaps the most sweeping language came concerning the government’s vast claim of executive power.

The court rejected that in strong language: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

They added: “Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”

The administration also argued the states did not have standing — or the legal right — to bring the suit.

But the court disagreed.

“(A)s the operators of state universities, the states may assert not only their own rights to extent affected by the Executive Order but may also assert the rights of their students and faculty members,” the judges wrote.

National security argument

The court also chastised the Trump administration for failing to provide an explanation for how national security concerns justified an “urgent need” for the executive order to be immediately reinstated.

It suggested the administration “could have provided the court “with classified information” but failed to do so.

And while the administration had set forth a fallback argument in order to limit the scope of the temporary restraining order currently in place — arguing that if the judges were inclined to uphold the lower court’s decision to block Trump’s ban, then the ruling should at least be limited to people who have previously been admitted to the US — the appellate court was unconvinced.

“It is not our role to try, in effect, to rewrite the Executive Order. …The political branches are far better equipped to make appropriate distinctions,” the court explained.

The court said that it had to look at the interest of the public. It acknowledged that the public had a “powerful interest” in national security and in the “ability of an elected president to enact policies” but that the states had a stronger argument.

“The public has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination,” the judges wrote.

What’s next?

Trump’s executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.

Trump issued the travel ban January 27, causing chaos, confusion and protests at international airports as the legal status of people in transition was suddenly thrown into question. Lawsuits have been filed across the country, but it was one from federal Judge James Robart in Seattle last Friday that blocked the travel ban nationwide, clearing the way for resumed travel from the seven countries.

The administration appealed, and the three-judge panel heard oral arguments Tuesday evening via telephone and issued the ruling Thursday per curiam, meaning it is unsigned and there was no dissent. Judge Michelle T. Friedland, who was appointed by President Barack Obama, Judge William C. Canby Jr, an appointee of President Jimmy Carter, and Judge Richard R. Clifton, an appointee of President George W. Bush, heard the case.

“The Trump administration has lost dramatically and completely,” said Jeffery Toobin, a CNN political analyst, on “The Situation Room.”

“This decision will have a lot more public credibility because it is unanimous, and I think it complicates the Trump administration’s attempt, if they choose to make it, to disparage this decision as a political act,” Toobin said.

The administration has not announced its next step, but Trump has previously indicated that he would take the case all the way to the Supreme Court if necessary, a move that would set up a legal showdown of even higher stakes and visibility.

Should it choose, before it goes to the Supreme Court, the Justice Department has the option of asking for an en banc review of the three-judge panel ruling among judges of the full 9th Circuit.

33 comments

  • William Abda

    The decision is flawed; Judge is applying US citizen rights to non-citizens families not covered under the constitution.

  • JD

    “A Federal Appeals court Thursday evening ruled against the Trump Administration’s controversial transportation order, upholding a district court judge’s ruling to block the order” I PROTEST!!!.

  • Nikki Stadnitski Martini

    Progressive liberals are hypocrites! Where was all the outrage before? Melt away snowflakes, melt away!

    Six of the last seven presidents, both Republicans and Democrats, have relied on the same federal law to keep certain groups of foreigners out of the United States.

    Jimmy Carter denied entry to Iranians in April 1980 after a failed rescue mission for American hostages in Iran. Ronald Reagan barred migrants arriving at the borders from “the high seas” in September 1981, targeting Haitians and Cubans. Bill Clinton in November 1999 barred those responsible for repressing civilians in Kosovo. And George W. Bush in June 2001 banned those who planned or carried out wartime atrocities in the Western Balkans.

    “In general, all presidents have used executive orders to impact immigration policy,” said Clete Samson, an immigration attorney who spent years as a federal trial attorney for the Department of Homeland Security.

    In each case, the presidents relied on 8 U.S.C. 1182(f), a statute that gives them wide latitude over who can come into the country.

    “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” the law says.

  • Givemeabreak

    That point of view is clicks and playing to who they think their base viewers are, which is about the money. My comments are usually moderate and they get deleted 90% of the time. Now if I used derogatory language or inflammatory speech it has a better chance of staying up. I don’t fit in with the sensationalism agenda. Rational legitimate discussions don’t seem allowed.

  • Lloyd Schmucatelli

    I don’t think that red knit hat and those white framed glasses can scream Hillary voters any louder than they do.
    It’s a shallow judgement call, but I’m making it none the less.

    I’d have to shower after being in a crowd like that.

  • think positive

    Yes. Whoever is at the controls has their own point of view, and if there is a comment that conflicts with their opinion, it’s GONE.

  • goose

    Paul Joseph Watson tends to disagree and his success predates our 2016 election. Welcome to dealing with the new “counter culture” that is most of the people that you see on the street everyday. The hornet’s nest got kicked, people are waking up. America united. Thank you liberals for being so damn dumb that you got more people educated in what affects their daily lives. Emoji

    • Givemeabreak

      Sensationalism Donnie.
      Media sensationalism is defined as the style of reporting news to public that involves use involving fear, anger, excitement along with crude thrill undertaken through the media in order to boost your viewership, ratings and lastly profits.
      He is just like them. Now he is part of them with his Tweets. He is now the media. Those who want to see can.
      Sensationalism Donnie.

    • BZ22

      The problem is Trump stated he could walk down the avenue, shoot someone and not lose a vote. That blind, avid, rabid adoration and worship is cause for worry! He’s using that to have free rein and reign!

  • Tired Old Guy

    I think it will be overturned. After all the 9th circuit is the most overturned court in the Country. What the President should do is take it back to Washington state to give him time to get the new justice sworn in if there was a tie at the Supreme. Then they ought to pass legislation to break up the 9th which is what I think they are doing now. He needs some better lawyers the hacks in there now are amateurs left over from prior administrations. On the merits his ban is statutorily and constitutionally sound though it should have been a little more thought out as far as putting it in place nevertheless the President is well within his rights and duty the way the U.S code is written.

  • goose

    Just wondering. There are 195-196 countries in the world (oh Taiwan, being difficult). Why here? Think about the last 10 years of your life and how things have changed drastically. Why do they want to come here? There are no other places that are as succinct in the way they handle their society? Switzerland is tops when it comes to percentages. The answer is that there are differences in key words and practices in how you describe someone that is taught to you by an outlet. and you’re getting tricked. Most of these places only have one name passports to vet, and no backround. Guess you’d let someone use your name on a credit or job application knowing nothing about them?

    • Real American

      The invasion force is firmly in Europe. We are the last target before they can move forward with their plan to destroy western culture as the koran teaches

  • Givemeabreak

    Actually I am right here. There are others that just happen to think the same and are not buying into constant fear mongering. Maybe you need a safety pin Silverfish.

  • Gail

    It does not matter how long of a process it is. If a ban is needed to make the vetting process stricter, so be it. The ban is TEMPORARY. How many immigrants are you going to go to the airport to pick up and take into your home and completely financially support? Give me a number? How many of them do you want to allow to live in your home for an indefinite amount of time and provide complete support for?

  • Silverfish Imperetrix

    Well, well, well. If it isn’t GIVEMEABREAK under a new name. Stick to reading tea leaves, willya?

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