By Erik Larson , Kartikay Mehrotra , Bob Van Voris , and David Voreacos
February 10, 2017
A federal appeals court unanimously refused to reinstate President Donald Trump’s ban on travel from seven Muslim-majority countries, issuing a sharp rebuke in a ruling likely destined for the U.S. Supreme Court.
Trump was defiant, tweeting 26 minutes later, “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!” He told White House reporters the decision was “political.”
The 29-page ruling from a three-judge panel of the Ninth Circuit Court of Appeals concluded roundly that the government failed to make its case that a temporary freeze on the ban should be lifted, and called into question presidential power to limit immigration in the way Trump did.
Joe Scarborough of MSNBC reported Friday, citing unidentified sources, that the White House is working on a new executive order with more specific language.
The judges rebuffed the contention that the states of Washington and Minnesota had no right to sue in the matter -- and rejected the argument that courts have no authority to review an executive branch decision on immigration policy.
That notion “runs contrary to the fundamental structure of our constitutional democracy,” according to the jurists, two of whom were appointed by Democratic presidents, one by a Republican. The court announced the decision in an unsigned opinion, making it impossible for Trump, who has tweeted criticisms of the judicial system in this case, to single out one of them.
With his Jan. 27 executive order, issued without warning, Trump was making good on campaign promises to stop Muslims from entering the country to defuse the threat of Islamist terrorism by halting the flow of those who he said might be secretly planning attacks. It has been the most consequential act of a young and aggressive administration that wants to minimize America’s engagement with the world, roiling global politics in the process.
It spurred protests across the U.S. and a flurry of lawsuits, with the one from the states of Washington and Minnesota the first to reach an appeals court.
Reaction to the panel’s decision was predictably divided. David Rivkin, a constitutional litigator who worked for two Republican presidents, Ronald Reagan and George W. Bush, called it “deplorable” and said “it goes way beyond this executive order” in its commentary.
“It’s nothing less than a blatant and unprecedented aggrandizement of judicial power in the foreign affairs sphere at the expense of the executive branch and Congress,” he said. “It will not stand.”
Immigration advocates and other legal scholars lauded it, with Stephen Wasby, a professor at State University of New York in Albany, saying it was “a wake-up call for the Trump administration.”
In response to Trump’s tweet, Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, tweeted, “We already saw you in court. You lost. And we’re not sick of winning yet, Mr. President.”
Senate Minority Leader Chuck Schumer, a New York Democrat, said Trump should abandon his executive action and "come up with a real, bipartisan plan to keep us safe."
The appeals court cautioned that its analysis was preliminary, emphasizing that its task was only to decide whether a temporary restraining order issued by U.S. District Judge James Robart in Seattle in the states’ suit should be lifted or kept in place, “in light of the relative hardship and public interest.”
Even if the high court weighs in, the issue at hand is a narrow one and the underlying case is at an early stage. Robart must still analyze evidence and hear arguments to determine if the executive order violates the Constitution. The Supreme Court could intervene now to allow Trump to temporarily resume the ban, and perhaps later take the case to decide to uphold or reverse further rulings that deal more directly with the substance of the arguments.
An immediate appeal would come before a divided eight-justice court that is awaiting approval of Trump’s nominee, Neil Gorsuch. Reversing Thursday’s ruling would require a five-vote majority.
The prospective ninth justice told more than one senator he was dismayed by the president’s attacks on the judiciary, including Robart. In Twitter posts, Trump has excoriated him as a “so-called judge” and called his temporary restraining order “ridiculous.”
A spokeswoman for the Justice Department said the administration was reviewing the appeals court decision and considering its options.
Kendall Coffey, who was U.S. Attorney for the Southern District of Florida under President Bill Clinton, said the panel’s opinion “strongly suggests that a narrower executive action would have been sustained. The ban on lawful permanent residents was found to be a clear violation of due process.”
The White House could opt to rewrite and reissue the ban, applying it more narrowly to exempt people with so-called green cards, he said. “I think the way to turn this around would be to re-frame the executive order.”
The three appeals court judges rejected almost all of the government’s arguments, saying the administration had delivered no proof any immigrant from the seven countries has ever carried out a terrorist attack on the U.S. Though they said they agreed that “the government’s interest in combating terrorism is an urgent objective of the highest order,” they said the administration “has done little more than reiterate that fact.”
The two states, the judges said, showed “ample evidence” that they, their businesses, universities and citizens would be harmed if the ban were restored, even temporarily.
“These are substantial injuries and even irreparable harms,” the judges said. They declined to recognize a White House clarification that the ban doesn’t apply to green-card holders from the seven countries who are legally in the U.S. but feared they wouldn’t be allowed to return if they traveled abroad, citing “the government’s shifting interpretations of the executive order.”
They dismissed the claim that the order had already been amended to afford green card holders due process because the source of the revision was “authoritative guidance” from White House counsel David McGahn. “The White House counsel is not the president, and he is not known to be in the chain of command for any of the executive departments,” the judges said.
Washington and Minnesota also raised the claim that the travel ban discriminates against Muslims, and according to the opinion, Trump’s campaign promises to implement what he referred to as a “Muslim ban” are fair game for the courts to consider in determining whether the intent behind the order was discriminatory. But the judges drew no conclusion on the claim itself.
Trump’s order set off chaos as companies, universities, citizens and refugees struggled with the ramifications. More than 1,200 people were “recommended denial of boarding” on planes headed for the U.S. as of Feb. 2, according to U.S. Customs and Border Protection. Since Robart temporarily halted enforcement on Feb. 3, people affected have been rushing to the U.S.
The order barred Syrian refugees indefinitely, and blocked for 120 days all others fleeing their homelands claiming persecution or fear of violence. No citizens of Syria, Iran, Iraq, Yemen, Somalia, Libya or Sudan could enter the U.S. for 90 days.
The legal attacks on the policy continue Friday, with lawyers for Virginia Attorney General Mark Herring asking a federal judge in Alexandria for a preliminary injunction that would erect an even larger obstacle for the Trump administration because that court order would last through a trial.
For more information, go to: www.beverlyhillsimmigrationlaw.com