The 9th District Court of Appeals unanimously dealt President Trump’s agenda a blow when it refused to reinstate his travel ban of seven nations, most of them Muslim. A defiant Trump would Tweet: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The president would tell reporters that the ruling was “a political decision” and predicted he would win on appeal “in my opinion, very easily.” However, that remains to be seen with the Supreme Court remaining with just eight justices and in apparent deadlock – and, even if he does get his appointment, getting the swing vote of Justice Anthony Kennedy is by no means assured.
The administration is expected to move fast and file an emergency application to the Supreme Court, perhaps as soon as the end of this week.
“The Government has not shown that a stay is necessary to avoid irreparable injury,” the court wrote. “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.”
Instead, the court notes, “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 court continued: “To the extent that the Government claims that it has suffered an institutional injury by erosion of the separation of powers, that injury is not ‘irreparable.’ It may yet pursue and vindicate its interests in the full course of this litigation.”
On the other hand, “the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple ‘other parties interested in the proceeding.’
“When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms,” the court reasoned.
The Trump administration had reasoned that the Executive Order’s discretionary waiver provisions would provide a safety valve for those who would suffer unnecessarily, but the court rejected that argument, noting “it has offered no explanation for how these provisions would function in practice: how would the ‘national interest’ be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.”
Instead, in evaluating the need for a stay, the court weighed the issue of the public’s interest in national security versus their interest in the free flow of travel, avoiding separation of families and freedom from discrimination.
They concluded, “We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
The Council on American-Islamic Relations (CAIR), the nation’s largest Muslim civil rights and advocacy organization, welcomed the federal appeals court’s decision to maintain the freeze on President Trump’s controversial “Muslim ban” executive order, which barred entry into the United States by refugees and citizens from seven Muslim-majority nations.
CAIR National Executive Director Nihad Awad said, “We applaud this ruling as a reaffirmation of the strength and independence of our system of justice. This decision adds to the long list of federal judges – both Republican and Democratic appointees – who found reason to block this discriminatory order.
“While this decision is critical, it is not the end of the legal process. Other courts across the country will be passing judgment on this order, and the U.S. Supreme Court will likely weigh in at some point,” he continued. “This victory should not lead to complacency. This and other Trump administration orders and policies still pose a threat to communities of color, religious minorities, women, and others.”
California Attorney General Xavier Becerra, who filed an amicus (friend of the court) brief in the case, said on Thursday, “The Ninth Circuit Court of Appeals ruled on the side of justice today, acknowledging the States’ right to challenge the Trump Administration’s travel ban and keeping in place a district court order suspending that ban.”
He continued, “As Attorneys General throughout the country have argued, the Trump Administration violated the Constitution when it blocked tens of thousands of law-abiding people—who have already been vetted and received permission to enter—from traveling to the United States.
“While today’s court ruling may not mark the end of our fight, its decision to preserve the suspension of the Trump Administration’s travel ban means that our families and businesses and our state institutions and universities can continue forward without harmful disruption,” he added.
“As this issue moves further through the courts, I will take every measure possible to inform Californians of their rights and to monitor the federal authorities’ adherence to the suspension of the Administration’s un-American and unconstitutional order.”
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, issued a statement: “The appeals court’s refusal to reinstate the Muslim ban is correct. The government’s erratic and chaotic attempts to enforce this unconstitutional ban have taken a tremendous toll on innocent individuals, our country’s values, and our standing in the world. We will keep fighting this un-American executive order until it is permanently dismantled.”
The ACLU of Northern California put out a statement, “Today’s ruling is reason to celebrate. If the court had granted the Trump administration’s request, U.S. citizens, residents, and their family members here and across the world would have once again been facing chaos and uncertainty. The Trump administration was unable to show the court a real need to immediately reinstitute the Muslim ban.”
“The president’s Executive Order dishonors our values as a nation and is wreaking havoc in the lives of everyday people. We are a diverse society. Muslim Americans, immigrants and U.S.-born alike, are part of the fabric of this nation,” the statement read.
For the time being, this ruling has the following implications:
- People who have visas and are from the seven targeted countries can continue to enter the United States.
- The U.S. refugee admissions program – including the admission of Syrian refugees – continues.
- The U.S. refugee admissions program can’t prioritize one religion over another as it makes its decisions.
The ACLU’s case in the Northern District of California, Al-Mowafak v. Trump, continues. In addition to challenging the Executive Order, the ACLU and co-counsel — Keker Van Nest & Peters LLP — are challenging the State Department’s January 27 revocation letter, which revoked an estimated 60,000 to 100,000 visas.
“As the Washington case moves forward, we will continue to litigate on behalf of our clients in California,” they said.
Congressman John Garamendi, who represents Davis and much of Yolo County, added, “The 9th Circuit made the right decision today. President Trump’s travel ban is not just shortsighted, destructive, and counterproductive—it is also likely illegal. I believe it is appropriate for the injunction to stay in place until the lawsuits are adjudicated. I am heartened by today’s ruling, and I urge the Trump administration to respect the judiciary and our long-established legal processes.”
—David M. Greenwald reporting