Appeals court unanimously rejects Trump on travel ban

The Hill – by Melanie Zanona

A San Francisco-based appeals court on Thursday rejected the Trump administration’s request to resume his executive action on immigration and refugees, setting up a potential showdown in the Supreme Court.

The United States Court of Appeals for the Ninth Circuit ruled unanimously that a nationwide restraining order against President Trump’s temporary travel ban may continue while a federal judge considers a lawsuit over the policy.  

“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 three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.

“Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree,” they wrote.

“In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

Trump tweeted about the decision minutes after it was made public, declaring: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

The Justice Department said it is reviewing the decision and considering its options, according to CBS News’s Paula Reid.

The administration can now ask the Supreme Court to immediately intervene, which legal experts think is likely, or wait until a ruling on the preliminary injunction order. The high court is currently shorthanded with eight justices. If there is a split decision, the lower court’s ruling would be upheld.

U.S. District Judge James Robart in Seattle — a George W. Bush appointee — temporarily froze Trump’s order blocking refugees and citizens from seven predominantly Muslim countries from entering the U.S. last week. Hundreds of travelers from the blocked countries have raced to get into the county while the controversial policy was put on ice.

The Department of Justice asked for the restraining order to be lifted. The appeals court denied the agency’s request for an emergency stay, but asked for additional legal briefs from both sides and held oral arguments on Tuesday.

During the hour-long hearing, August Flentje — representing the Trump administration as special counsel for the Department of Justice — argued that states do not have legal standing to bring the lawsuit and that it is within the president’s broad legal authority to protect the country’s national interest with respect to the entry of aliens or refugees.

Lawyers for each side had 30 minutes to make their case in a conference call with the judges that was broadcast live online and received heavy media coverage.

But the judges seemed to signal that the states do have grounds for a lawsuit.

“Sure they can,” Clifton, the Bush appointee, said when Flentje asserted that states do not have legal standing to challenge the denial of visas.

The judges also voiced skepticism that the countries targeted in the ban posed a real risk for terrorism. Flentje said the nations were previously identified by Congress and the Obama administration as “countries of concern.”

Washington state Solicitor General Noah G. Purcell had urged the judges to uphold the lower court’s ruling and continue suspension of Trump’s order as lawsuits make their way through the legal system.

Lawyers for the plaintiffs, the states of Washington and Minnesota, argued in part that the order violates the Establishment Clause of the First Amendment, which prohibits the government from favoring one religion over another.

“I’m not persuaded,” Clifton said. The countries targeted “encompass only a relatively small percentage of Muslims.”

Purcell said states just needed to prove the order was motivated by a desire to discriminate against Muslims, citing Trump’s remark in December 2015 about a “total and complete shutdown on Muslims entering the United States.”

Following the hearing, Trump lashed out at the panel of federal judges weighing the case and suggested the court was political. The president had sparked backlash last weekend for calling the judge who put a hold on his ban a “so-called” judge on Twitter.

“I don’t want to call a court biased, so I won’t call it biased,” the president said at a gathering of the Major Cities Chiefs Association in Washington. “Courts seem to be so political and it would be so great for our justice system if they could read a statement and do what’s right.”

Trump’s nominee for the Supreme Court, Neil Gorsuch, reportedly told a Democratic senator that such attacks on the judicial system were “disheartening.”

Trump’s executive order bars people from Iraq, Iran, Syria, Yemen, Libya, Sudan and Somalia from entering the U.S. for 90 days and temporarily halts the United States’ refugee resettlement program for 120 days, while indefinitely suspending resettlement for refugees from Syria.

The order also says the administration should “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.”

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