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."