A federal appeals court on Thursday declined to revive President Donald Trump’s controversial immigration order that temporarily bans all refugees as well as foreign travelers from seven majority-Muslim countries.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously upheld a lower court’s order that has temporarily stopped the Trump administration from implementing the travel ban.
The decision means the Justice Department has important choices ahead about how to continue the legal fight over the executive order. Trump has said he will take the case to the Supreme Court.
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump tweeted within minutes of the appeals court ruling.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
The judges were not deciding the merits of the travel ban, only whether the government should be allowed to implement it while it is being challenged by the states of Washington and Minnesota. Those states filed a lawsuit contending that the ban is discriminatory and harmful to their residents, universities and businesses.
The 9th Circuit found, during this “very preliminary stage,” that the administration did not convince them on two key legal points.
First, the government did not show that failure to allow immediate implementation of the travel ban would cause injury to the Trump administration — a point the president pressed during the week in a series of controversial Twitter posts.
The ban barred foreign travelers from seven countries — Iran, Iraq, Syria, Sudan, Somalia, Yemen and Libya — that the Trump administration said posed the greatest risk of terrorism.
“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 appeals court 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.”
By contrast, the states of Washington and Minnesota offered “ample evidence” that the travel restrictions harmed their university employees and students, separated families and stranded the states’ residents abroad, the court ruled.
Second, the panel found the government did not demonstrate that it would be likely to succeed on the merits of the case. In doing so, the judges ruled that they could not rely on the White House’s shifting interpretation of how Trump’s executive order affected lawful permanent residents.
Also, the judges found the Trump administration did not convince them that the order protected constitutional rights.
Senate Minority Leader Charles E. Schumer, however, said Trump “ought to see the handwriting on the wall that his executive order is unconstitutional.”
“He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe,” Schumer said.
Unless the Justice Department acts, the ruling sends the case back to the courtroom of U.S. District Judge James Robart in Seattle, who put the temporary restraining order in place last week that stopped implementation of the ban nationwide. Robart is expected to hold a hearing in the coming days or weeks on whether to enter a temporary injunction — which is more substantial than the restraining order.
The Justice Department, and newly confirmed Attorney General Jeff Sessions, could immediately appeal this 9th Circuit ruling. Trump, on Twitter this week, posted several times about how the courts were getting in the way of national security.
“The threat from radical Islamic terrorism is very real, just look at what is happening in Europe and the Middle-East. Courts must act fast!” Trump tweeted Tuesday.
The threat from radical Islamic terrorism is very real, just look at what is happening in Europe and the Middle-East. Courts must act fast!
— Donald J. Trump (@realDonaldTrump) February 7, 2017
The three judges on the panel — two appointed by Democratic presidents and one appointed by a Republican president — laid out, in the ruling, the tough decisions ahead for federal judges who will decide this challenge as well as others filed across the country.
“Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages,” the 9th Circuit panel wrote.
“On one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies,” the ruling stated. “And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”
Bridget Bowman contributed to this report.