A federal appeals court in San Francisco declined Feb. 9 to reinstate President Donald Trump’s Jan. 27 ban on travel from seven predominantly Muslim countries.
A three-judge panel of the 9th U.S. Circuit Court of Appeals turned down the Trump administration’s bid for an emergency stay of Feb. 3 order by a federal trial judge in Seattle suspending the ban.
Among other arguments, the judges rejected the Justice Department’s claim that courts have little or no power to review presidential executive actions on immigration and national security.
“It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” the panel said.
The three judges said they were “mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.”
“Nevertheless, 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 court said.
Trump responded with a tweet vowing, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The U.S. Justice Department, representing the Trump administration, could appeal directly to the U.S. Supreme Court or to an expanded 11-judge panel of the circuit court. It also has the option of continuing an expedited appeal before the three-judge panel.
Department spokeswoman Nicole Navas said, “The Justice Department is reviewing the decision and considering its options.
We have no further comment.”
A number of other lawsuits challenging Trump’s Jan. 27 executive order have been filed in federal trial courts around the country, but Feb. 9’s decision was the first by a federal appeals court.
The executive order would bar people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days; stop refugees from all countries for 120 days, and exclude Syrian refugees indefinitely.
It cited a need to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.”
After a week of chaos at airports and the cancellation of at least 60,000 visas, the order was blocked by a nationwide temporary restraining order by U.S. District Judge Robart of Seattle, acting on a lawsuit filed by Washington state and Minnesota. The two states were supported in briefs filed by 18 other states, including California.
The three judges on the 9th Circuit panel were William Canby, Richard Clifton and Michelle Friedland. They issued the 29-page ruling as a “by the court” opinion that did not specify an individual author.
The standards for evaluating whether to grant a stay of Robart’s ruling were whether the Justice Department was likely to win a full appeal and a weighing of the hardships that would be incurred on each side while the case continues, the court noted.
The panel said the department hadn’t shown that in future proceedings, it was likely to defeat the states’ claim that the ban denied due process to legal residents, visa holders and refugees seeking to enter the United States from the seven countries.
The states’ due process claim was strong enough to justify denying an emergency stay, the court said.
The panel said a second claim by the states, that the ban discriminates against Muslims, raised “serious allegations” and “significant constitutional questions,” but said it would postpone considering that issue until it received further briefing.
In weighing hardships, the panel said the Trump administration hadn’t shown evidence there was an urgent national security need to change the procedures and protections already in place.
“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 court noted.
On the other hand, the court said, the states had offered substantial evidence that the travel ban harmed the states’ university employees and students, separated families, and stranded residents abroad during the time that it was in effect.
If the Justice Department does not win further appeals, the next stop for the case would be a full appeal hearing before the three-judge circuit court panel. The court Feb. 9 set an expedited schedule for submission of briefs in March, with the final government brief due on March 29, and would set a hearing sometime after that.
Several California elected officials and civil rights groups hailed the ruling.
“The Constitution still trumps rhetoric,” said California Attorney General Xavier Becerra.
The appeals court “ruled on the side of justice Feb. 9, acknowledging the states’ right to challenge the Trump Administration’s travel ban,” he said.
U.S. Senator Kamala Harris, D-Calif., said the decision “recognizes this administration has utterly failed to justify the tremendous harm this ban has inflicted on our country.”
The ruling is “in line with our American values, constitutional protections and national security interests,” said Congresswoman Barbara Lee, D-Oakland.
The California branch of the Council on Islamic-American Relations and the San Francisco-based Asian Americans Advancing Justice also issued statements applauding the decision.
Judicial Watch, a conservative watchdog group based in Washington, D.C., opposed the ruling, calling it “a dangerous example of judicial overreach.”