A federal appeals court in San Francisco Thursday refused to reinstate President Donald Trump’s ban on travelers from seven predominantly Muslim nations.
A three-judge federal appeals panel Thursday unanimously refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.
U.S. District Judge James Robart in Seattle issued a temporary restraining order last week halting the ban on immigration and travel from seven predominantly Muslim nations after Washington state and Minnesota sued. The ban temporarily suspended the nation’s refugee program and immigration from countries that have raised particular terrorism concerns.
Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and courts cannot second-guess his determination that such a step is needed to prevent terrorism.
The ruling Thursday by the 9th Circuit panel rejected that argument: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The case is likely to be quickly appealed to the U.S. Supreme Court.
In a tweet Friday, Trump called the decision disgraceful. Trump quoted an article by Benjamin Wittes, editor-in-chief of the Lawfare blog. It reads, “Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.” Trump tweeted, “A disgraceful decision!”
Moments after the ruling Thursday, Trump gave this all-caps response on Twitter minutes after the ruling: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The judges on the Ninth Circuit 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.
The Supreme Court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
Washington state Attorney General Bob Ferguson on Thursday declared “complete victory.”
He urged the Trump administration to stop pursuing the case and pull back the executive order, which was signed Jan. 27.
“No one is above the law, not even the President,” Ferguson said at a news conference. “The President should withdraw this flawed, rushed and dangerous executive order, which caused chaos across the country.”
Washington Gov. Jay Inslee, who has been sharply critical of Trump and 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.”
Chaos, protests, “so-called judge”
The weekend after the ban took effect brought confusion and protests to airports across the United States, including at Seattle-Tacoma International Airport, as refugee families waited for loved ones and green card holders didn’t know where they stood, in terms of travel. Some people with visas were turned back.
Robart temporarily halted the ban after determining the states were likely to win the case and had shown that the ban would restrict travel by their residents, damage their public universities and reduce their tax base. Robart put the executive order on hold while the lawsuit works its way through the courts.
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After that ruling, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports round the country.
Trump promptly mocked Robart (nominated for the bench by President George W. Bush in 2003) on Twitter as a “so-called judge” and said due to the “terrible” decision “many very bad and dangerous people may be pouring into our country.”
The case before the 9th Circuit this week, on whether to uphold Robart’s decision to suspend the travel ban, did not take on all constitutional issues involved. Rather, the judges weighed whether the state or the nation would incur more harm.
The states argued the travel ban harmed individuals, businesses and universities. Citing Trump’s campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.
The Trump administration urged the judges to reject arguments based on religious discrimination, even though Trump has said he meant to favor Christian refugees. Judicial consideration of the president’s motives, lawyers for the administration said, would violate the separation of powers.
The Justice Department lawyers hit hard on national security, saying a temporary ban was needed to reassess vetting and that the president, ultimately responsible, had the right to go beyond the Obama administration’s stepped-up vetting for people traveling from those seven countries.
Legal analysts had largely predicted the 9th Circuit’s decision, saying the judiciary would be reluctant to reinstate the ban, given the new round of chaos that would likely result.
Both sides faced tough questioning during an hour of arguments Tuesday conducted by phone. Broadcast live on cable networks, newspaper websites and social media, the oral arguments attracted a huge audience.
The judges hammered away at the administration’s claim that the ban was motivated by terrorism fears, but they also challenged the states’ argument that it targeted Muslims.
“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,’ Clifton, the Bush appointee, asked Noah Purcell, Washington state’s solicitor general.
Only 15 percent of the world’s Muslims are affected by the executive order, the judge said, citing his own calculations.
“Has the government pointed to any evidence connecting these countries to terrorism?” Friedland, the Obama appointee, asked the Justice Department attorney.
On Thursday, the court ruling said, “… we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”
The judges added, “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.
“We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
Seattle Times staff reporters Mike Carter and Joseph O’Sullivan contributed to this report from Seattle and Olympia.