States 1, Trump 0 in travel ban case
UNITED STATES: A federal appeals court has handed a resounding victory to Washington state and Minnesota in their challenge of President Donald Trump’s travel ban, finding unanimously that a lower court ruling suspending the ban’s enforcement should stay in place while the case continues.
The 3-0 decision from the 9th Circuit Court of Appeals sided with the states on nearly every issue presented.
Some legal scholars who reviewed it said the Justice Department could face long odds in any immediate appeal to the US Supreme Court, though that won’t necessarily stop the administration from trying. Trump tweeted ‘‘SEE YOU IN COURT’’ after the ruling came out yester- day, prompting a sharp retort from Washington Governor Jay Inslee: ‘‘Mr. President, we just saw you in court, and we beat you.’’
For now, it means refugees and people from seven majorityMuslim nations identified in the president’s surprise January 27 executive order can continue entering the country. Travellers from those countries won’t be detained, or put back on planes heading overseas, and there won’t likely be more protests jamming the nation’s airports as there were after Trump issued the surprise order.
But the executive order isn’t dead, either - it just isn’t being enforced while the courts debate its legality. The federal government has 14 days to ask the 9th circuit to reconsider yesterday’s decision. It could also file an emergency appeal with the US Supreme Court, which would go to Justice Anthony Kennedy for referral to the rest of the court.
Rory Little, a former Supreme Court clerk who teaches at the University of California Hastings College of the Law, doesn’t think that’s such a good idea. In addition to seeking to overturn a reasoned decision, he said, Trump would be facing Chief Justice John Roberts, who just wrote an annual report in which he raved about his District Court judges.
The president repeatedly insulted the Seattle judge who ruled against him, in addition to the appeals judges who followed suit.
‘‘I think Kennedy and Roberts are seething about the president insulting their judges,’’ Little said.
‘‘If they go to the US Supreme Court, they risk getting a serious adverse ruling.’’
There have been, in effect, two items before the court: the government’s appeal of the lower judge’s ruling, and its motion to put that ruling on hold pending the appeal. The panel denied the motion for stay and set a briefing schedule for fuller arguments on the merits of the appeal.
Barring an immediate appeal to the Supreme Court, the government’s opening brief is due March 3, with the states’ filing due March 24.
In denying the motion for stay, the court said it was considering whether the administration was likely to win its appeal, whether suspending the travel ban had harmed the government, and whether the public interest favoured granting the stay or rejecting it.
The judges agreed that the lower court’s ruling was appealable - the only question on which the states lost.
They rejected the DOJ’s argument that the states lacked standing to sue, noting that some faculty members at state universities were unable to travel, for example.
But most forcibly, they rejected the DOJ’s notion that the president has nearly unlimited authority over immigration decisions. ‘‘There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,’’ the opinion said. - AP