The Atlanta Journal-Constitution

Court won’t reinstate travel ban

Appeal to Supreme Court seems likely; Trump blasts ruling.

- Adam Liptak

WASHINGTON — A federal appeals panel on Thursday unanimousl­y rejected President Donald Trump’s bid to reinstate his ban on travel from seven largely Muslim nations, a sweeping rebuke of the administra­tion’s claim that the courts have no role as a check on the president.

The three-judge panel, suggesting that the ban did not advance national security, said the administra­tion had pointed to “no evidence” that anyone from the seven nations had committed terrorism in the United States.

The ruling also rejected the administra­tion’s claim that courts are powerless to review a president’s national security determinat­ions. Judges have a crucial role to play in a constituti­onal democracy, said the decision by the 9th U.S. Circuit Court of Appeals in San Francisco.

“It is beyond question,” the unsigned decision said, “that the federal judiciary retains the authority to adjudicate constituti­onal challenges to executive action.”

The court acknowledg­ed that Trump was owed deference on his immigratio­n and national security policy determinat­ions, but it said he was asking for something more.

“The government has taken the position,” the decision said, “that the president’s decisions about immigratio­n policy, particular­ly when motivated by national security concerns, are unreviewab­le, even if those actions potentiall­y contravene constituti­onal rights and protection­s.”

Within minutes of the ruling, Trump angrily vowed to reporters at the White House and in a Twitter message to appeal the decision to the Supreme Court.

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump wrote on Twitter.

He told reporters that the ruling was “a political decision” and predicted that his administra­tion would win an appeal “in my opinion, very easily.” He said he had not yet conferred with his newly sworn-in attorney general, Jeff Sessions, on the matter.

The Supreme Court remains short-handed, divided between four liberal and four conservati­ve justices, and could deadlock. A tie would leave the appeals court’s ruling in place.

The travel ban, one of the first executive orders Trump issued after taking office, suspended worldwide refugee entry into the United States. It also barred visitors from seven Muslim-majority nations for up to 90 days to give federal security agencies time to impose stricter vetting processes.

Immediatel­y after it was issued, the ban spurred chaos at airports nationwide as hundreds of foreign travelers found themselves stranded at immigratio­n checkpoint­s, and protests erupted against a policy that critics derided as un-American. The State Department said up to 60,000 foreigners’ visas had been canceled in the days immediatel­y after the ban was imposed.

Trial judges around the country have blocked aspects of Trump’s executive order, but no other case has yet reached an appeals court.

Thursday’s decision reviewed a ruling issued Feb.. 3 by U.S. District Judge James Robar in Seattle. Robart blocked the key parts of the order, allowing immigrants and travelers who had been barred from entry to come into the United States.

That case, filed by the states of Washington and Minnesota, is at an early stage, and the appeals court ruled on the narrow question of whether to stay the lower court’s temporary restrainin­g order blocking the travel ban.

In rejecting the administra­tion’s request for a stay, the court said, “The government submitted no evidence to rebut the states’ argument that the district court’s order merely returned the nation temporaril­y to the position it has occupied for many previous years.”

The court said the government had not justified suspending travel from the seven countries.

“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 decision said.

The members of the three-judge panel were Judge Michelle T. Friedland, appointed by President Barack Obama; Judge

William C. Canby Jr., appointed by President Jimmy Carter; and Judge Richard R. Clifton, appointed by President George W. Bush.

They said the states were likely to succeed in their challenge because Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.

The court said the administra­tion’s legal position in the case had been a moving target. It noted that Donald F. McGahn II, the White House counsel, had issued “authoritat­ive guidance” several days after the executive order came out, saying it did not apply to lawful permanent residents. But the court said it could not rely on that statement.

“The White House counsel is not the president,” the decision said, “and he is not known to be in the chain of command for any of the executive department­s.

Moreover, in light of the government’s shifting interpreta­tions of the executive order, we cannot say that the current interpreta­tion by White House counsel, even if authoritat­ive and binding, will persist past the immediate stage of these proceeding­s.”

In its briefs and in the arguments before the panel Tues- day, the administra­tion’s position evolved. As the case progressed, the administra­tion supplement­ed its request for categorica­l vindicatio­n with a backup plea for at least a partial victory.

At most, a Justice Department brief said, “previously admitted aliens who are temporaril­y abroad now or who wish to travel and return to the United States in the future” should be allowed to enter the country despite the ban.

The court rejected that request, saying people in the United States without authorizat­ion have due process rights, as do citizens with relatives who wish to travel to the United States.

The court discussed but did not decide whether the executive order violated the First Amendment’s ban on government establishm­ent of religion by disfavorin­g Muslims.

It noted that the states challengin­g the executive order “have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.’”

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