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Federal appeals court upholds freeze on Trump’s travel ban

Can President Trump actually "break up" the court that has blocked two of his executive orders? (Video: Gillian Brockell, Osman Malik/The Washington Post)

A West Coast federal appeals court upheld the freeze on President Trump’s travel ban Monday, declaring that Trump had exceeded his lawful authority in suspending the issuance of visas to residents of six Muslim-majority countries and suspending the U.S. refu­gee program.

A three-judge panel with the U.S. Court of Appeals for the 9th Circuit ruled against the administration unanimously. Their ruling is another blow to Trump — although the administration has asked the Supreme Court to to step in and save the ban in a different case.

Trump’s latest tweets will probably hurt effort to restore travel ban

Trump fired back Tuesday in a tweet, saying the 9th Circuit “did it again” by ruling against the travel ban “at such a dangerous time in the history of our country.” As in some previous tweets, Trump wrote out “TRAVEL BAN” in all capitals.

He ended the message with “S.C.” — a reference to a possible Supreme Court hearing on the executive order.

The ruling by the 9th Circuit was both logistically and symbolically important — keeping in place the broadest blockade on Trump’s order and creating legal and practical paths for the directive to die.

Unlike other courts in the past, the three judges did not dwell on Trump’s public comments, nor did they declare that the president had run afoul of the Constitution because his intent was to discriminate. Instead, they ruled that the travel ban lacked a sufficient national security or other justification that would make it legal, and that violated immigration law.

They offered no opinion on whether the ban was constitutional.

“There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests,” the judges wrote. “These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”

Attorney General Jeff Sessions said in a statement that he disagreed with the court’s decision and that the president was within his authority to issue the order.

“Recent attacks confirm that the threat to our nation is immediate and real,” Sessions said. “President Trump knows that the country he has been elected to lead is threatened daily by terrorists who believe in a radical ideology, and that there are active plots to infiltrate the U.S. immigration system — just as occurred prior to 9/11. The President is committed to protecting the American people and our national security, and we are proud to support his mission to put America first by defending his right to keep us safe. That is why the Department of Justice will continue to seek further review by the Supreme Court.”

Neal Katyal, one of the lawyers representing those challenging the ban, said on Twitter that the decision was a “complete win” and noted it was different from previous victories in other cases.

The Supreme Court is allowing a limited version of President Trump's travel ban to take effect as it gears up to hear the case in the fall. (Video: Jenny Starrs/The Washington Post, Photo: Jonathan Newton/The Washington Post)

Although the U.S. Court of Appeals for the 4th Circuit had upheld a separate freeze on Trump’s ban on constitutional grounds, that freeze did not apply to the portion of Trump’s order dealing with refugees. The 9th Circuit was considering a freeze that did, and concluded that Trump had not provided sufficient justification to either temporarily suspend refu­gee admission or lower the refu­gee cap for fiscal 2017 to 50,000.

The opinion also clarified that the administration could conduct an internal review to assess vetting procedures.

That could be construed as a victory for Trump: The appeals court said a federal judge in Hawaii was wrong to restrict his administration from conducting such a review. But Hawaii, which had successfully challenged the ban, earlier in the day had told the Supreme Court it had no objection to such a move.

"The executive is free to engage in any manner of study, review, upgrade or revision of its existing vetting procedures," the state argued, adding, "so long as the order did not use these provisions to justify or expand a veiled Muslim ban, they would survive judicial review."

If the travel ban is to be salvaged, the Supreme Court would have to move quickly.

Trump proposed a 120-day travel ban to improve vetting. It’s been 129 days.

That is because the measure is supposed to be temporary — barring the issuance of new visas to residents of six Muslim-majority countries for 90 days and suspending the U.S. refu­gee program for 120 days so officials could review vetting procedures. The Justice Department had said it felt blocked from conducting a review by the Hawaii judge, meaning the clock had essentially stopped.

That clock will presumably now run again, though whether it will start from 90 or something short of that remains unclear. With a Supreme Court recess looming, the ban could expire before the justices reach a decision — unless they grant the Justice Department’s request to stay the injunctions on the ban.

Trump seemed to suggest on Twitter recently, though, that he viewed the measure not as a temporary one.

"People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!" he wrote last week. Trump's press secretary had previously disputed calling the measure a ban, and the Justice Department has sought in court to characterize it as a "temporary pause."

Most Supreme Court practitioners and experts said they would be surprised if the court turned down a petition from the government on a matter of national security — though the justices might feel less pressure to come to a decision on the merits of the executive order before the end of June.

In a filing with the court Monday concerning the 4th Circuit decision, ACLU lawyer Omar C. Jadwat said the administration had shown by its actions that there was no immediate danger to the country in not having the travel ban in place. And he argued there is a “looming mootness” question because no court has stayed the executive order in its entirety. Jadwat asserted the order is set to expire June 14.

The ACLU filing said the 4th Circuit, and other courts that have halted the executive order, had little choice. "To allow the ban to go forward, the courts would have had to ignore a mountain of publicly available evidence — even though everyone else in the country, including those of the disfavored faith, could not ignore it. They would have had to set aside this Court's precedents and turn their backs on their traditional and crucial role in disputes where constitutional liberties are at stake."

The 9th Circuit opinion was written by judges Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez, all appointed by President Bill Clinton. They heard arguments in the case last month and focused much of their questioning on the president's campaign trail and other public comments, which other judges have cited as evidence the president meant to discriminate against Muslims in imposing a ban.

Trump earlier this month doubled down on some of those comments, deriding the revised travel ban as a "watered down" version of the first and calling the new measure "politically correct." Legal analysts said that might ultimately hurt his case; one tweet was cited in a footnote in Monday's opinion.

In their ruling, though, the 9th Circuit judges criticized the Trump administration not for its public opining, but for its lack of a real justification for the directive.

The latest version of the ban — which Trump signed after revoking an order that banned residents of seven Muslim-majority countries — describes conditions in the countries affected and says that more than 300 people who entered the country as refugees were the subject of active counterterrorism investigations.

Trump administration’s latest rationale for travel ban: National security officials asked for it

The judges noted that a Department of Homeland Security report concluded citizenship was an "unreliable" threat indicator, and most foreign-born extremists are radicalized years after coming to the United States. The judges said the president had broad authority to set immigration policy, but it was "not unlimited."

“In conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the judges wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”

The 9th Circuit was the court that upheld the freeze on Trump's first travel ban, and it has since become a focus of the president's ire.

When U.S. District Judge William Orrick blocked his executive order on stripping federal funding from sanctuary cities, Trump incorrectly attributed the decision to the 9th Circuit as he wrote on Twitter: "First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!" Orrick is a ­lower-court judge whose rulings would be reviewed by the 9th Circuit.

Trump then wrote that the circuit had a "terrible record of being overturned" — a claim that is highly debatable — and he said later that he had "absolutely" considered breaking up the court.

Brian Murphy contributed to this report.