Donald Trump’s controversial travel ban suffered a major setback on Thursday after a panel of three judges upheld an injunction against the president’s order banning arrivals from seven Muslim-majority countries.
In its unanimous ruling, the three judges on the ninth circuit court of appeals upheld the temporary restraining order, which was issued by Judge James Robart, a federal district court judge in Washington state, and has blocked the enforcement of many key parts of the executive order.
The court found that “the government has not shown a stay is necessary to avoid irreparable injury.” In particular, its ruling noted “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. 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.”
Almost immediately, Trump tweeted his response: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
Speaking to reporters in the West Wing shortly after that the ruling, he characterized it as “a political decision” and said that “the safety of the nation is at stake”. Trump added that he “looks forward to seeing them in court”.
Thursday’s ruling does not end all litigation over the executive order, which sparked international outcry when it was first issued. Instead, it simply means that its provisions – which include a 90-day travel ban from seven Muslim-majority countries, a 120-day freeze on admission of any refugees into the United States, as well as indefinite halt to admitting any refugees from Syria – cannot be enforced again as the legal battle moves forward. There are roughly 20 lawsuits against the travel ban currently making their way through courts in various states.
On Robart’s injunction, the federal government can now ask the supreme court to review the ninth circuit’s ruling. But the unanimous ruling suggests that the Trump administration will face an uphill battle.
The supreme court could also sidestep controversy and defer an appeal, leaving the ruling in place as the case works its way through other courts.
The appeals court decision follows a hearing Tuesday night, where lawyers for the state of Washington, which was challenging the ban, argued with attorneys for the justice department.
August Flentje, the lawyer for the federal government, argued that the ban was “plainly constitutional,” noting that Congress has granted the president the authority to suspend certain classes of immigrants. However, he additionally argued that the decision should not be subject to judicial review, noting that “judicial second-guessing of the president’s national security determination in itself imposes substantial harm on the federal government and the nation at large”.
The court rejected much of this argument in its ruling. The panel wrote “although courts owe considerable deference to the president’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action”.
In contrast, Noah Purcell, the solicitor general of Washington state who was arguing to keep the injunction, cited Trump’s campaign trail promise to impose “a total and complete shutdown on Muslims entering the United States” and raised the specter of religious discrimination.
The court, though, did not base its decision on this argument, although it noted “we reserve consideration of these claims until the merits of this appeal have been fully briefed”.
Instead, it found that the government had not shown it was sufficiently likely to succeed in a court hearing on the question of whether the executive order restricted without due process an affected individual’s ability to travel.
The judges’ ruling was also scathing in parts, essentially calling into question the government’s credibility.
On the confusion over the rights of lawful permanent residents caught up in the travel ban, the ruling notes: “At this point, however, we cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents.”
Then later continues: “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.”
Also in the opinion, the judges wrote that “it is well established that evidence of purpose” from a case’s context can be used in court – meaning that the states can cite Trump’s claims and tweets, for instance about his preference for Christians and call for a “complete and total shutdown of Muslims”, as admissible evidence.
Trump’s long history of controversial statements, the court suggested, can therefore be used as legal weapons against him.
The decision immediately set off a political firestorm on both sides of the aisle. Donna Brazile, the chair of the Democratic National Committee, celebrated the decision in a statement. “This is a massive blow to the White House. The court upheld that we do not discriminate based on religion. That is what terrorists do, and what terrorists want us to do.”
The Washington state attorney general, Bob Ferguson, agreed: “The bottom line this is a complete victory for the state of Washington.”
“We are a nation of laws as I have said … from day one, those laws apply to everyone in our country and that includes the president of the United States.”
In contrast, Republican Senator Tom Cotton from Arkansas railed against the ruling. “No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president. This misguided ruling is from the ninth circuit, the most notoriously left-wing court in America and the most reversed court at the supreme court,” said Cotton in a statement.
Senior White House aide Kellyanne Conway, speaking on Fox News, expressed confidence that the ruling simply represented a bump in the road. “It is an interim ruling and we are fully confident that when we get our day in court and argue it on the merits we will prevail.”
Purcell said on Thursday: “The judges did their jobs carefully and well and we appreciate their work.”
He added: “We are not usually in the limelight light like this, and we’re not used to it.”
(TheGuardian US)
