A federal appeals panel Thursday unanimously rejected President Donald Trump’s bid to reinstate his ban on travel from seven largely Muslim nations, a sweeping rebuke of the administration’s claim that the courts have no role to act as a check on the president.
The three-judge panel, suggesting that the ban did not advance national security, said, for instance, that the administration had pointed to “no evidence” that anyone from the seven nations had committed terrorism in the United States.
The ruling also rejected the administration’s claim that courts are powerless to review a president’s national security determinations. Judges have a crucial role to play in a constitutional democracy, said the decision by the 9th U.S. Circuit Court of Appeals, in San Francisco.
“It is beyond question,” the unsigned decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
The court acknowledged that Trump was owed deference on his immigration and national security policy determinations, but it said he was asking for something more.
“The government has taken the position,” the decision said, “that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.”
Within minutes of the ruling, Trump angrily vowed to reporters at the White House and in a Twitter message to appeal the decision to the Supreme Court.
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump wrote on Twitter.
He told reporters that the ruling was “a political decision” and predicted that his administration would win an appeal, “in my opinion, very easily.” He said he had not yet conferred with his attorney general, Jeff Sessions, on the matter.
The Supreme Court remains short-handed and could deadlock. A 4-4 tie there would leave the appeals court’s ruling in place.
The travel ban, one of the first executive orders Trump issued after taking office, suspended worldwide refugee entry into the United States. It also barred visitors from seven Muslim-majority nations for up to 90 days to give federal security agencies time to impose stricter vetting processes.
Immediately after it was issued, the ban spurred chaos at airports nationwide as hundreds of foreign travelers found themselves stranded at immigration checkpoints, and protests erupted against a policy that critics derided as un-American. The State Department said up to 60,000 foreigners’ visas had been canceled in the days immediately after the ban was imposed.
Trial judges around the country have blocked aspects of Trump’s executive order, but no other case has yet reached an appeals court.
Thursday’s decision reviewed a ruling issued Feb. 3 by Judge James Robart, a federal judge in Seattle. Robart blocked the key parts of the order, allowing immigrants and travelers who had been barred entry to come into the United States.
That case, filed by the states of Washington and Minnesota, is at an early stage, and the appeals court ruled on the narrow question of whether to stay a lower court’s temporary restraining order blocking the travel ban.
In rejecting the administration’s request for a stay, the court said, “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 court said the government had not justified suspending travel from the seven countries. “The government has pointed to no evidence,” the decision said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”The members of the three-judge panel were Judge Michelle Friedland, appointed by President Barack Obama; Judge William Canby Jr., appointed by President Jimmy Carter; and Judge Richard Clifton, appointed by President George W. Bush.
They said the states were likely to succeed in the end because Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.
In its briefs and in the arguments before the panel Tuesday, the administration’s position evolved. As the case progressed, the administration supplemented its request for categorical vindication with a backup plea for at least a partial victory.
At most, a Justice Department brief said, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future” should be allowed to enter the country despite the ban.
The court rejected that request, saying that people in the United States without authorization have due process rights, as do citizens with relatives who wish to travel to the United States.
The court discussed but did not decide whether the executive order violated the First Amendment’s ban on government establishment of religion by disfavoring Muslims.
It noted that the states challenging the executive order “have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.’” And it said, rejecting another administration argument, that it was free to consider evidence about the motivation behind laws that draw seemingly neutral distinctions.
But the court said it would defer a decision on the question of religious discrimination. “In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim,” the decision said, “we reserve consideration of these claims.”