SAN FRANCISCO (CN) – A unanimous Ninth Circuit panel handed the fledgling Trump administration a significant defeat Thursday afternoon, ruling against its effort to reinstate the ban on travelers from seven predominately Muslim nations that threw U.S. airports, streets and courts into chaos last week.
“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 29-page unsigned order says.
The panel of U.S. Circuit Judges William Canby, Richard Clifton and Michelle Friedland took issue with the President Donald Trump’s legal argument that the executive branch has broad discretion when it comes to matters of national security. Though Trump this exempts the travel ban from judicial review, the panel cited several other cases where courts stepped in to provide a check on executive power in matters of national security.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel wrote. “Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”
Thursday’s ruling, which is widely believed to be headed to the Supreme Court, does not mean the travel ban is overturned; it just can’t be enforced while courts sort through the various arguments surrounding its legality.
Trump signed the travel ban on Jan. 27 after a week in office, banning entry of all refugees for 120 days, halting admissions from war-torn Syria indefinitely, and barring entry by citizens of Iraq, Iran, Sudan, Libya, Somalia and Yemen for three months.
All seven nations are largely Muslim, prompting many to call it a ban on Muslims. The White House has since pushed back and said the executive order has nothing to do with religion and more to do with the targeted nations being terror-prone and therefore a national-security risk.
The Trump administration has cited executive orders from his predecessor Barack Obama and an act of Congress that temporarily halted the flow of immigrants and refugees from the same nations as precedent for his decision.
Countering this, however, Washington state Attorney General Eric Ferguson has pointed to Trump’s public pronouncements on the campaign trail that he would bar Muslims from entering the United States. Coupled with the words of Trump’s advisers and allies, Ferguson says, this demonstrates the president, unlike his predecessor, enacted the ban with the specific intent to unconstitutionally harm Muslims.
“I think the public statements of the president and his top advisers provide strong intent evidence to go forward on this claim,” Washington state Solicitor General Noah Purcell told the Ninth Circuit during an hour-long hearing Tuesday.
The Ninth Circuit did not weigh in directly on the religious-discrimination aspect of the case, saying it would “reserve consideration of these claims until the merits of this appeal have been fully briefed.”
The ruling does, however, say “the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban,” and that the “claims raise serious allegations and present significant constitutional questions.”
Standing is another crucial component of the case, with the Trump administration arguing that Washington state and its co-plaintiff, Minnesota, didn’t actually suffer harm and could not sue on behalf of their citizens.
In this regard, the panel once again rebuffed Trump and accepted the states’ argument.
Both Washington and Minnesota filed declarations that say scholars, faculty and students were directly affected by the ban since they were barred from traveling for academic and personal reasons.
“The University of Washington also sponsored two medicine and science interns who have been prevented by the executive order from coming to the University of Washington,” the panel wrote. “The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted.”
The financial loss to the state universities as a result of the ban constitutes sufficient harm, the judges said.
“Under the ‘third party standing’ doctrine, these injuries to the state universities give the states standing to assert rights of the students, scholars and faculty affected by the executive order,” the panel wrote.
The original lawsuit Washington state filed last week, which Minnesota later joined, contends that the travel ban is unconstitutional and violates Fifth Amendment’s due-process guarantees, the establishment clause of the First Amendment, and the Immigration and Nationality Act’s prohibition against discrimination on the basis of national origin.
U.S. District Judge James Robart in Seattle sided with the states this past Friday, granting a temporary restraining order on the travel ban that effectively bars Customs and Border Protection workers from enforcing Trump’s executive order while the case moves forward.
The Trump administration immediately appealed the decision, asking the Ninth Circuit for a temporary stay. Judges Canby, Friedland and Clifton heard arguments from both sides during an hour-long hearing on Tuesday, but seemed more skeptical of the arguments offered by August Flentje, special counsel for the U.S. Attorney General’s Office.
The travel ban has been Trump’s most controversial move to date, setting off protests around the nation and a slew of lawsuits filed in both state and federal courts. The State of Washington v. Trump and subsequent appeal is the most high-profile of the cases since Judge Robart’s halt of the executive order has been the most consequential court action.
Robart’s freeze of the travel ban remains in effect with the panel’s ruling while the matter is fully briefed and argued in the coming weeks.
Trump himself has reacted unfavorably to the court challenges to his order, calling Robart a “so-called judge” immediately after the restraining order. He later tweeted, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
These and subsequent comments have drawn sharp criticism from lawmakers and members of the judicial branches on both sides of the aisle. Trump’s own U.S. Supreme Court nominee, Neil Gorsuch, reportedly told Sen. Richard Blumenthal of Connecticut that the president’s comments were “demoralizing” and “disheartening.” Gorsuch is a judge with the 10th Circuit, a Denver-based federal appeals court.
But praise for the panel’s decision has been coming in from across the United States. Carol Rose, director of the American Civil Liberties Union of Massachusetts, called the Ninth Circuit’s ruling “comforting.” Rose’s group became the only challenger of Trump’s travel ban to suffer a defeat last week when a federal judge refused to extend an a preliminary restraining order. That order became moot that same afternoon, however, with the ruling from Robart.
Another group Muslim Advocates hailed the ruling as upholding “long-treasured American values of the rule of law and liberty and equality for all, regardless of religion.”
And Vermont Sen. Bernie Sanders – formerly a candidate for president – said, “Hopefully, the unanimous court ruling against President Trump’s immigration ban will restore some of the damage he has done to our country’s reputation around the world.
“It may also teach President Trump a lesson in American history and how our democracy is supposed to work here at home,” Sanders added.
Both sides continue to supply briefing to Robart’s court, and Washington state’s solicitor general said a deadline for documents relating to a possible preliminary injunction is already set for Feb. 17. Most legal experts anticipate, however, that Trump will appeal today’s Ninth Circuit decision to the Supreme Court, meaning the fate of the controversial travel ban is slated to be in limbo for the foreseeable future.