The legal fight over President Donald 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 Thursday, 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 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 tweeted, “SEE YOU IN COURT,” adding that “THE SECURITY OF OUR NATION IS AT STAKE!”
But it is unclear what 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 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. 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.
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,” 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 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 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 Trump’s 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 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,” 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.
