The legal fight over President Donald J. Trump’s ban on travelers from seven predominantly Muslim nations is on hold after the 9th U.S. Circuit Court of Appeals refused to reinstate the order, unanimously rejecting the administration's claim of presidential authority, questioning its motives and concluding that the order was unlikely to survive legal challenges.
In a rebuke to the Trump administration on Feb. 9, the three federal appellate judges sided with the states of Washington and Minnesota on nearly every matter, opening the possibility that the case could shift to the U.S. Supreme Court.
In a tweet on Feb. 10, Mr. Trump called the decision disgraceful. Mr. 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." Mr. Trump tweeted, "A disgraceful decision!"
Moments after the ruling, Mr. Trump tweeted, "SEE YOU IN COURT," adding that "THE SECURITY OF OUR NATION IS AT STAKE!"
While the ban is on hold, refugees and people from seven majority-Muslim nations identified in the president's Jan. 27 executive order can continue traveling to the United States.
But it is unclear what Mr. Trump's next move will be. The Justice Department said it is reviewing the decision and considering its options. It was the first day on the job for new Attorney General Jeff Sessions.
The lower court action so far is temporary and hasn't resolved broader questions about the legality of Mr. Trump's order. While the ban is on hold, refugees and people from seven majority-Muslim nations identified in the president's Jan. 27 executive order can continue traveling to the United States.
The appellate judges noted compelling public interests on both sides.
"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."
The administration could appeal the ruling to a larger 9th Circuit panel or bypass that step and go straight to the U.S. Supreme Court. That could put the decision over whether to keep the temporary restraining order suspending the ban in the hands of a divided court that has a vacancy. Mr. Trump's nominee, Neil Gorsuch, cannot be confirmed in time to take part in any consideration of the ban, which would expire in 90 days unless it is changed.
The ban also faces dozens of other lawsuits, some filed by would-be refugees directly affected by it.
"We remain steadfast in our commitment to resettling refugees and all those fleeing persecution," said Bishop Joe S. Vasquez of Austin, Texas.
The chairman of the U.S. bishops' Committee on Migration welcomed the ruling in a statement on Feb. 10. "We respect the rule of law and the American judicial process. We remain steadfast in our commitment to resettling refugees and all those fleeing persecution," said Bishop Joe S. Vasquez of Austin, Texas.
"At this time we remain particularly dedicated to ensuring that affected refugee and immigrant families are not separated and that they continue to be welcomed in our country," the statement said.
The bishop pledged that church agencies would continue to welcome people "as it is a vital part of our Catholic faith and an enduring element of our American values and traditions."
Stephen Vladeck, a professor at the University of Texas School of Law, said two footnotes near the end of the opinion struck him as most significant because they challenged the government's assertion that national security was at stake. Without evidence of the threat migrants would pose to security, the court couldn't balance that assertion against harm they would suffer if not allowed to enter the country.
"It's not enough for the president to simply proclaim that the executive order is necessary to protect national security," Mr. Vladeck said, paraphrasing the ruling. "He needs to give us at least some basis for agreeing with him."
The 9th Circuit judges rejected the administration's argument that courts did not have the authority to review the president's immigration and national security decisions. They said the administration failed to show that the order met constitutional requirements to provide notice or a hearing before restricting travel. And they said the administration presented no evidence that any foreigner from the seven countries was responsible for a terrorist attack in the U.S.
"Despite the district court's and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, 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 panel wrote.
Last week, U.S. District Judge James Robart in Seattle issued a temporary restraining order halting the ban after Washington state and Minnesota sued. The ban temporarily suspended the nation's refugee program and immigration from countries that have raised terrorism concerns.
Asked to respond to Mr. Trump's tweet, Washington Attorney General Bob Ferguson said, "We have seen him in court twice and we're two for two, that's number one. And in my view, the future of the constitution is at stake."
Justice Department lawyers appealed to the 9th Circuit after Mr. Robart’s ruling, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.
The states said Mr. Trump's travel ban harmed individuals, businesses and universities. Citing Mr. Trump's campaign promise to stop Muslims from entering the United States, they said the ban unconstitutionally blocked entry to people based on religion.
The appeals court sided with the administration on just one issue. The states had argued that 9th Circuit precedent prohibits review of temporary restraining orders. The panel said that the intense public interest and uncertainty over how long the court case might take made it appropriate for the court to consider the federal government's appeal.
Jessica Levinson, a professor at Loyola Law School, said the ruling was thoughtful and supported by a great deal of legal precedent. More important, though, it was unanimous even though the panel included judges appointed by Democratic and Republican presidents.
"It's a very important message that judges are not just politicians in robes and not just political hacks," Ms. Levinson said.
After the ban was put on hold, 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 United States.
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lawyers will always gladly disagree in newspapers etc on matters of great public interest and scrutiny if only to get a bit of publicity. Generally these lawyers are "volunteers" and have not even been solicited for their thoughts.
I believe you will find that most of the preeminent commentators (see Alan Dershowitz, Jonathan Turley, et al ) find the subject 9th circuit court opinion to be "political" and not constitutional.
Contrary to Ms Levinson view, the long history of the 9th Circuit is "political" ..."policy driven" with the highest historic annual reversal rate of any Circuit by the Supreme Court.
This decision simply amplifies that reputation whereas Ms Levinson seems to think it refutes it. The 9th Circuit has always been famous in legal circles for its endless political positions and posturing. This decision was expected and wasn't the slightest bit surprising.
This case was brought by the collection of Attorneys General in the State of Washington precisely to have it before the 9th Circuit because of its well known policy rather than legal basis for its decisions.
Having read the "due process " portions of the 9th Circuit Decision, it would seem that President Obama violated the "due process rights" of Cuban refugees, etc who sought or would like to take advantage of the "historic wet foot- dry foot rule" when he unilaterally revoked the rule without notice or articulated basis for revocation.
It is certainly analogous to any alleged lack of "due process" in the case of the Trump/Seven Middle Eastern States.
Immigration laws and rules are intrinsicly exclusionary and preferential.....I mean quotas regulating both numbers and areas of permitted immigration per annum. In the long history of these laws no one has ever asserted in court or otherwise that this is unlawful discrimination which constitutes the violation of the rights of non included persons.. The 9th Circuit ruling is genuinely a"first" without precedent in any recognized jurisprudence.