The ruling, the first from an appeals court on the travel ban, is likely to be quickly appealed to the short-handed U.S. Supreme Court
WASHINGTON — A federal appeals panel on Thursday unanimously rejected President 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 to act as a check on the president.
The three-judge panel of the 9th U.S. 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 panel, suggesting the ban did not advance national security, said that the administration had pointed to “no evidence” that anyone from the seven nations had committed terrorism in the United States.
New U.S. senator:Luther Strange, Alabama’s attorney general, was sworn in Thursday to fill the Senate seat left empty by Jeff Sessions, tapped by President Trump to be the nation’s top law-enforcement officer. Sen. Orrin Hatch, R-Utah, administered the oath to Strange, a Republican and former Washington lobbyist. Strange, 63, joins the Senate after Sessions’ confirmation as U.S. attorney general Wednesday night. Strange, sometimes referred to as “Big Luther” because of his 6-foot-9 frame, said last year that he intended to run for the Senate seat regardless of whether he got the interim appointment.
Abe visit: Trump is personally paying the tab for Japanese Prime Minister Shinzo Abe’s visit to the Trump-owned Mar-a-Lago resort in Palm Beach, Fla. “That is a gift that the president is extending to the prime minister,” White House spokesman Sean Spicer said in response to questions about the ethical dilemma of having a world leader stay at one of the Trump hotels.
Only Abe — no other member of the Japanese delegation — will be staying at Mar-a-Lago, Spicer said. “They will stay out in town with the rest of the staff,” he said.
Seattle Times news services
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 panel 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 said the ruling was a “political decision” and predicted his administration would win an appeal “in my opinion, very easily.” He said he had not conferred with his attorney general, Jeff Sessions, on the matter.
Washington state Gov. Jay Inslee, who has sharply criticized Trump and has been emphatic in his embrace of refugee resettlement in the U.S., called the ruling a “reaffirmation of the checks-and-balances system that we hold dear.”
“I just saw a tweet from the president; he said, ‘See you in court,’ ” Inslee said. “Well, Mr. President, we just saw you in court, and we beat you, and you ought to think about this.”
The Supreme Court remains short-handed and could deadlock. A 4-4 tie there would leave the appeals court’s ruling in place.
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Washington state Attorney General Bob Ferguson, who brought the lawsuit, declared “complete victory.”
“No one is above the law, not even the president,” Ferguson, a Democrat, said at a news conference. “The president should withdraw this flawed, rushed and dangerous executive order, which caused chaos across the country.”
U.S. Rep. Dave Reichert, a Republican from Auburn, Wash., also seemed to indicate that Trump needed to adjust policy, in cooperation with the legislative branch.
“The way the Executive Order was developed and implemented did not uphold our values and disrupted the lives of many individuals who legally deserve to be here,” Reichert said in a statement. “Congress and the Administration must work together to implement legislation that keeps Americans safe while respecting religious freedom and creating a way forward for those who wish to come here legally and contribute to our communities.”
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 Jan. 27.
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 last Friday in Seattle by Judge James Robart. Robart blocked the key parts of the order, allowing immigrants and travelers who had been barred 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,” the decision said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
The three members of the panel were Judge Michelle Friedland, appointed by President Obama; Judge William Canby Jr., appointed by President Carter; and Judge Richard Clifton, appointed by President George W. Bush.
They said the states were likely to succeed in their case 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 that “we cannot 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 Tuesday, 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 that 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.’ ” And it said, rejecting another administration argument, that it was free to consider evidence about the motivation behind laws that draw seemingly neutral distinctions.
The court said it would defer a decision on the question of religious discrimination. “In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim,” the decision said, “we reserve consideration of these claims.”
World Relief, one of the agencies that resettles refugees in the United States, is scheduled to receive 275 newcomers in the next week, many of whom will be reunited with relatives. The agency will arrange for housing and jobs for the refugees in cities including Seattle; Spokane, Wash.; and Sacramento, Calif.
“We have families that have been separated for years by terror, war and persecution,” said Scott Arbeiter, president of the organization. “Some family members had already been vetted and cleared and were standing with tickets, and were then told they couldn’t travel. So the hope of reunification was crushed, and now they will be admitted. That’s fabulous news for those families.”
The court ruling did not affect one part of the executive order: the cap of 50,000 refugees to be admitted in the 2017 fiscal year. That is down from the 110,000 ceiling put in place under Obama. The order also directed the secretary of state and the secretary of homeland security to prioritize refugee claims made by persecuted members of religious minorities.
As of Thursday, that means the United States will be allowed to accept only about 16,000 more refugees this fiscal year. Since Oct. 1, the start of the fiscal year, 33,929 refugees have been admitted, 5,179 of them Syrians.