Court won’t reinstate travel ban
Panel of appeals judges unanimously upholds the block on Trump’s order
In a significant setback for the Trump administration’s first major attempt to carry out its anti-terrorism agenda, a federal appeals court Thursday refused to reinstate a controversial executive order barring travelers from seven predominantly Muslim nations from entering the U.S.
A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality.
The travel moratorium signed Jan. 27 stirred chaos at airports and protests worldwide as at least 60,000 visas were canceled, including those held by students visiting families abroad and engineers working in the U.S.
The three judges, two Democratic appointees and one appointed by a Republican, unanimously said the Trump administration had not shown an urgent need to have the order go into effect immediately. By contrast, they said, the two states that challenged it had shown that some of their residents would be harmed by having their right to travel cut off.
In a ruling that rejected the administration’s arguments at almost every turn, the court faulted the federal government for failing to present evidence that the ban was needed for national security.
“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 court said.
The panel also denied the administration’s last-gasp request to limit the scope of the legal hold, perhaps making it apply to some but not others.
President Trump lost no time in responding to the court’s ruling on Twitter: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
U.S. District Judge James L. Robart issued a temporary restraining order last week blocking enforcement of Trump’s directive
after concluding that a challenge by the states of Washington and Minnesota was likely to succeed.
The Seattle-based judge, appointed by President George W. Bush, also concluded that halting the ban — at least for a while — would cause no undue harm to the country.
Administration lawyers have argued that the country could be at risk of a terrorist attack until heightened vetting measures for travelers from the seven identified countries are put into place.
In the first appellate court ruling on the controversial travel ban, the court rejected the administration’s argument that the courts lacked the right to review the president’s executive order. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel said.
“Indeed, federal courts routinely review the constitutionality of — and even invalidate — actions taken by the executive to promote national security, and have done so even in times of conflict,” the panel added.
The court said the states were likely to succeed in their due process claim, noting that the due process protections provided under the Constitution apply not only to citizens but to all “aliens” in the country, as well as “certain aliens attempting to re-enter the United States after traveling abroad.”
The judges also said they took note of the “serious nature” of the states’ claim that the travel ban, because it targets Muslim-majority nations and provides exceptions for members of persecuted religious minorities, constitutes religious discrimination.
“We express no view as to any of the States’ other claims,” the court said, though it noted the states had also offered “ample evidence” that reinstatement of the ban would harm their universities and businesses.
“The government lost across the board,” said Arthur Hellman, a University of Pittsburgh law professor. “At almost every stage, the court says to the government, ‘You have to persuade us, but you did not.’”
Trump’s executive order, issued seven days after the president took office, placed a 90-day block on admission of citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, all of which administration officials say have links to terrorism.
It also included a 120-day ban on all refugee admissions, indefinite suspension of the admission of Syrian refugees and preference for refugees who are members of persecuted religious minorities.
Washington and Minnesota sued Trump, maintaining the order was hurting their businesses and disrupting their public universities.
“Bottom line, this is a complete victory for the state of Washington,” Washington Atty. Gen. Bob Ferguson, who brought the lawsuit on behalf of his state and Minnesota challenging the executive order, said at a news conference after the decision. “We are a nation of laws. And as I have said, as we have said from Day One, that those laws apply to everybody in our country, and that includes the president of the United States.”
Hillary Clinton, Trump’s Democratic opponent in the 2016 campaign, had a quick, terse response on Twitter, apparently referring to the unanimity of the ruling: “3-0,” it said.
Eric H. Holder Jr., President Obama’s first attorney general, also responded on Twitter with a photo of Nancy Yates, the acting attorney general Trump fired after she refused to defend the president’s order. “Skill, judgment, courage. VINDICATED. 3-0,” Holder wrote.
Muslim groups across the country applauded the appellate court’s ruling.
The 9th Circuit “not only upheld a federal court ruling that placed a temporary nationwide halt to President Trump’s Muslim ban, it also upheld long-treasured American values of the rule of law and liberty and equality for all, regardless of religion,” Farhana Khera, executive director of the civil rights group Muslim Advocates, which has filed a brief in the case, said in a statement.
But former Arkansas Gov. Mike Huckabee, a 2016 GOP presidential candidate, tweeted that the court “thumbed nose at Constitution and law and did leftwing politics.”
Trump, he said, “tries to protect USA; court protects terrorists.”
Jay Sekulow of the American Center for Law and Justice, a conservative Christian group that filed a brief in support of the travel ban, said the decision “puts our nation in grave danger.”
“The fact is that President Trump clearly has the constitutional and statutory authority to issue this order,” he said.
The Trump administration can appeal the decision directly to the U.S. Supreme Court, which has four Democratic appointees and four Republican appointees and may be unable to reach a majority decision. The seat of the late Justice Antonin Scalia remains vacant.
Or it could agree to leave the stay in place and return to the district court in Seattle to begin arguing the constitutional issues that form the heart of the case.
The Seattle case that led to the 9th Circuit review is among dozens of suits going through federal district courts over the travel ban.
In Virginia, a Friday hearing was scheduled in front of a federal judge in a case brought by the state, which has asked for a preliminary injunction against the ban.
There is also a hearing set for late February in Brooklyn, N.Y., where a federal judge handed the American Civil Liberties Union the first legal victory against the ban when she issued an emergency order to halt deportations of visa holders who had arrived in the U.S. but were denied entry.