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| “The law is not an abstraction. There are real people’s lives impacted,” said Attorney General Bob Ferguson, during a news conference welcoming a Somali immigrant who was blocked from entry last week due to the President’s immigration ban Washington Governor Jay Inslee and Port of Seattle Commission President Tom Albro stand behind him. (Bettina Hansen/The Seattle Times)
A federal appeals court in San Francisco Thursday refused to reinstate President Donald Trump’s ban on travelers from seven predominantly Muslim nations.
A three-judge federal appeals panel Thursday unanimously refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.
U.S. District Judge James Robart in Seattle issued a temporary restraining order last week halting the ban on immigration and travel from seven predominantly Muslim nations after Washington state and Minnesota sued. The ban temporarily suspended the nation’s refugee program and immigration from countries that have raised terrorism concerns.
Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.
The ruling by 9th Circuit panel rejected that argument: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Many have predicted the case will be quickly appealed to the U.S. Supreme Court.
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The Supreme Court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
Washington state Attorney General Bob Ferguson isssued his own statement, urging that the Trump administration stop pursuing the case and pull back the executive order, which was signed Jan. 27. (Ferguson is holding a news conference, which can be seen on livestream).
“No one is above the law, not even the President,” Ferguson said. “The President should withdraw this flawed, rushed and dangerous Executive Order, which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.”
The case before the 9th Circuit, on whether to uphold Robart’s decision to suspend the travel ban did not take on all constitutional questions involved in the ban. Rather, the judges weighed whether the state or the nation would incur more harm.
The states argued Trump’s travel ban harmed individuals, businesses and universities. Citing Trump’s campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.
The Trump administration hit hard on national security, saying a temporary ban was needed to reassess vetting.
The weekend after the ban brought chaos and protests to airports across the United States, including at Seattle-Tacoma International Airport, as refugee families waited for loved ones and green card holders didn’t know where they stood. Some with visas were turned back.
On Thursday, the court said, “… 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 judges added, “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. 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.
“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.”
Both sides faced tough questioning during an hour of arguments Tuesday conducted by phone — an unusual step — and broadcast live on cable networks, newspaper websites and social media. It attracted a huge audience.
The judges hammered away at the administration’s claim that the ban was motivated by terrorism fears, but they also challenged the states’ argument that it targeted Muslims.
“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota.
Only 15 percent of the world’s Muslims are affected by the executive order, the judge said, citing his own calculations.
“Has the government pointed to any evidence connecting these countries to terrorism?” Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked the Justice Department attorney.
The lower-court judge temporarily halted the ban after determining that the states were likely to win the case and had shown that the ban would restrict travel by their residents, damage their public universities and reduce their tax base. Robart put the executive order on hold while the lawsuit works its way through the courts.
After that ruling, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports round the country.
The Supreme Court has a vacancy, and there’s no chance Trump’s nominee, Neil Gorsuch, will be confirmed in time to take part in any consideration of the ban.
The ban was set to expire in 90 days, meaning it could run its course before the court would take up the issue. The administration also could change the order, including changing its scope or duration.
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