A federal appeals panel has maintained the freeze on President Trump’s controversial immigration order, meaning previously barred refugees and citizens from seven majority-Muslim countries can continue entering the United States.
In a unanimous 29-page opinion, three judges from the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that suspension of the order should be lifted immediately for national security reasons, and they forcefully asserted their ability to serve as a check on the president’s power.
The judges wrote that any suggestion that they could not “runs contrary to the fundamental structure of our constitutional democracy.”
The judges did not declare outright that the ban was meant to disfavor Muslims — essentially saying it was too early for them to render a judgment on that question. But their ruling is undeniably a blow to the government and means the travel ban will remain off for the foreseeable future.
Trump reacted angrily on Twitter, posting just minutes after the ruling, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He later said to reporters that the judges had made “a political decision.”
“We have a situation where the security of our country is at stake, and it’s a very, very serious situation, so we look forward, as I just said, to seeing them in court,” he said.
On Friday, Trump continued to take aim at the ruling. He posted on Twitter a quote from a Lawfare article, which noted the judges had not cited in their opinion the section of the Immigration and Nationality Act that gives the president broad powers to stop foreigners from entering the United States.
What Trump failed to note is the article’s author said he felt the court’s decision was “correct … for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks.” The judges, too, noted they “owe considerable deference to the President’s policy determinations with respect to immigration and national security,” and their decision — for now — was limited to whether the government had an immediate need to put the ban back in place.
The Justice Department, the Lawfare piece added, had “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,” adding that the government “may yet pursue and vindicate its interests in the full course of this litigation.”
The Justice Department, which was defending the administration’s position, said in a statement it was “reviewing the decision and considering its options.”
Washington state Attorney General Bob Ferguson, who had sued over the ban, said, “Bottom line, this is a complete victory for the state of Washington,” and declared that the judges’ ruling “effectively granted everything we sought.”
The Justice Department could now ask the Supreme Court — which often defers to the president on matters of immigration and national security — to intervene. The Supreme Court, though, remains one justice short, and many see it as ideologically split 4 to 4. A tie would keep in place whatever the appeals court decides. The Justice Department could also ask the full 9th Circuit to consider the matter.
The appeals court opinion was written by Judge Michelle T. Friedland, who was appointed by President Barack Obama; Judge Richard R. Clifton, who was appointed by President George W. Bush; and Judge William C. Canby, who was appointed by President Jimmy Carter. It was detailed, but it does not represent a final judgment on Trump’s immigration ban.
Last Friday, U.S. District Judge James L. Robart granted the states of Washington and Minnesota a temporary restraining order on the ban. The appeals court judges noted their ruling was a “preliminary one,” and they were deciding only whether the government had “made a strong showing of its likely success” in getting the restraining order thrown out.
Kellyanne Conway, counselor to the president, said on Fox News: “This ruling does not affect the merits at all. It is an interim ruling, and we’re fully confident now that we’ll get our day in court and have an opportunity to argue this on the merits, that we’ll prevail.”
The ruling, though, is critically important — as Trump’s ban on refugees lasts only 120 days, and his ban on visitors from Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen lasts only 90 days. The judges also said that while the states of Washington and Minnesota had made serious allegations — and the impact of the order was “immediate and widespread” — the government had not pointed to any substantive evidence to support its need for the ban.
“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the judges wrote. “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.”
The states have alleged that the executive order harms their businesses and universities, preventing some students and faculty from traveling abroad for fear of being stranded and diminishing the sales tax revenue they receive.
Legislators and others who had opposed the ban hailed the judges’ ruling and urged Trump to back down.
“President Trump ought to see the handwriting on the wall that his executive order is unconstitutional,” said Senate Minority Leader Charles E. Schumer (D-N.Y.). “He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe.”
Sen. Patrick J. Leahy (D-Vt.) said, “If the President were serious about bringing our country together and keeping us safe, he would rescind this arbitrary and discriminatory order and recall what makes our country great.”
Hillary Clinton, who lost the presidency to Trump in November, posted on Twitter simply, “3-0.”
Federal immigration law undeniably gives the president broad authority to bar people from coming into the United States, stating that if the president finds “the entry of any aliens” would be “detrimental” to the country’s interests, he can impose restrictions. But lawsuits across the country have alleged that Trump’s particular order ran afoul of the Constitution in that it intentionally discriminated against Muslims.
At a hearing Tuesday, Justice Department lawyer August Flentje vigorously disputed that the measure was intended to target Muslims. In their ruling, the judges did not reveal their opinion on that question, although they noted Washington and Minnesota had “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.”
Former New York mayor Rudolph W. Giuliani recently said publicly: “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said: ‘Put a commission together. Show me the right way to do it legally.’ ” On the campaign trail, Trump himself called for a “complete and total shutdown” of Muslims entering the country.
The appeals court judges had questioned both sides skeptically at Tuesday’s hearing, seeming particularly interested in what evidence Trump relied upon in implementing his order and what limits the Justice Department saw on the president’s authority to set immigration policy. While Flentje urged them to restore the measure completely, he also at one point offered a fallback position. The judges, he suggested, could limit Robart’s order so that it applied only to foreigners previously admitted to the country who were abroad now or those who wished to travel and return to the United States in the future.
They declined to do even that, saying, as written, the president’s executive order could apply even to green-card holders — which it once seemed to do, although the White House counsel later issued guidance saying it did not. The judges said the Justice Department had “offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order,” and “in light of the Government’s shifting interpretations of the Executive Order,” they were not convinced that guidance would hold.
Trump and his supporters have pressed the case that the short-term stoppage on refugees and immigrants from the seven countries is necessary for national security reasons, and they have leveled blunt criticism at the courts. Trump went so far as to suggest on Twitter that if an attack were to happen, the judiciary would be to blame. On Wednesday, he denounced arguments about his order as “disgraceful” and said “a bad high school student” would understand the broad authority the law gives him to impose immigration restrictions.
A day earlier, Homeland Security Secretary John Kelly told Congress that he thought judges might be considering the issue from an “academic” perspective instead of the national security lens through which he views the world.
“Of course, in their courtrooms, they’re protected by people like me,” Kelly said.
Federal courts in New York, California and elsewhere already had blocked aspects of the ban from being implemented, although one federal judge in Massachusetts declared that he did not think that challengers had demonstrated that they had a high likelihood of success. The case before the 9th Circuit, though, was much broader than the others, because it stemmed from a federal judge’s outright halting of the ban.
Abby Phillip and John Wagner contributed to this report.